Boston Divorce Lawyer – Boston Divorce & Family Law Attorney Blog

In my previous post on Paternity issues, I mentioned that there are two ways for an individual to be established as a child’s parent: voluntarily or by court order.  This post explains the process of voluntarily acknowledging paternity, and the rights and responsibilities that come along with this acknowledgement.

Your first opportunity to acknowledge your paternity takes place at the hospital when your child is born.  At this point, both parents may sign a notarized “Acknowledgment of Parentage” form .  If both parents sign this form (and neither rescinds their acknowledgement within 60 days), the acknowledgement has the same legal effect as an Order of Paternity.  It is important to note that there is only a 60 day window for rescission.  This is why it is so important that both parents be certain about the acknowledgement prior to signing.

If you voluntarily acknowledge your paternity and 60 days pass, establishing yourself as anything other than your child’s parent is incredibly difficult.  There is only a one year window where the courts will allow a change to be made, and even then, they will only allow changes if a parent can show that the voluntary acknowledgment was the result of fraud, duress, or a material mistake of fact.  For the record, foregoing Genetic Marker Testing because you were certain of the fact you were the father is not a material mistake of fact.

Once you have voluntary acknowledged paternity, you are that child’s parent, regardless of whether or not that is the biological truth.  This comes with all the attendant rights and responsibilities and should not be taken lightly.

In the Commonwealth of Massachusetts, the rights and responsibilities of unwed parents are outlined through a Paternity Order, rather than Custody and Visitation or Support Orders as with parents who were wed at the time their child was born.  Paternity may also be established voluntary through the signing of an Acknowledgement of Parentage by both parents.

Paternity Orders or Acknowledgements of Parentage may be used to establish the identity of either a child’s father or his/her mother in the case where a surrogate was involved.  Once a Paternity Order has been entered, or a voluntary acknowledgment has become final, it is incredibly difficult to vacate or rescind.  This is because these orders and acknowledgements are entered by the court for the benefit of your child.  Even where an individual can show they are not a child’s biological parent, an order may be kept in place because doing so is in the best interest of the child.

This being true, it is important to both parents and the child to have Genetic Marker Testing (also known as DNA or Paternity testing) done prior to voluntarily acknowledging paternity.  Even if both parents are certain of the child’s paternity, having test results that show an individual is absolutely a child’s biological parent can avoid problems later.

If you are currently considering voluntarily acknowledging paternity of a child, you should contact an attorney.  Once you have acknowledged paternity, you have a wide variety of rights and responsibilities for the rest of your child’s life, it’s important that you understand them in full before you begin to navigate the process of obtaining an Order of Paternity.

There are some things I agree with and there are some things I don’t with this ABC News report.  I agree with the “expert” that kids are not pawns to be utilized to hurt your spouse or to get more money or pay less child support.  I don’t agree that you should give a settlement figure that makes you shake.

I mostly don’t agree with this expert’s view that most of the money will go to the divorce attorneys.  He’s obviously never met me or how I run my law firm.  Since I charge flat fees, I don’t charge more to my clients simply because there’s more to do in a case.  Lots (or a majority) of divorce lawyers in and around Boston that I know, do do that.  That is what’s so great about flat-fees.  Your attorney’s interest in resolving the case is aligned with the client’s interest.  There is no incentive to drag the case out longer because the lawyer will get richer.

Click here for Part 1

Nancy left that night to go back to N. Carolina after giving up her son to Tom.  She was tired as she had had a roller coaster of emotions in the past few days.  Anxiety and sadness over losing her son to Tom and his custody papers.  Joy that with the help of the police we got her son back.  And finally extreme sadness and depression over having to give up her son again.

As soon as Nancy got back to N. Carolina, I was in touch with her and I directed her to hire a child custody attorney in her home town immediately.  After Nancy hired the N. Carolina attorney, Colleen and I worked to devise a plan.  Colleen would start a custody case in N. Carolina while I scheduled another hearing on the case here in Massachusetts.  Our hope was that once a family court judge in N. Carolina took the case, we could then transfer the Massachusetts case to N. Carolina, where I believed it belonged.  Remember that the Massachusetts family court judge didn’t make any custody determinations.  He simply took “emergency custody”.  That was his code word to me that he would be willing to let the case go if there was another judge in N. Carolina supervising the case and the child.  At the end of the day, the judge here in Massachusetts just wanted to make sure that nothing happened to the child.

After about a month’s time, we finally got the order from a N. Carolina judge saying that they’ll take jurisdiction over the case.  A copy of the jurisdictional order was apparently sent to Tom’s attorney but not the order granting my client custody until the child was back in N. Carolina.  The question now was (1) whether or not the judge here in Massachusetts will dismiss the case as I had asked and relinquish his control over the case to the N. Carolina court and (2) what would Tom’s attorney do now that he knew we were coming.  And yes, Nancy and I were coming to get her son back ASAP.

The next day, Nancy came back here in town from N. Carolina.  Early in the morning, we went back to the police with our court order from N. Carolina and asked them once again to “keep the peace.”  They didn’t object this time.  We went over to Tom’s house and there was no answer.  After a long while, we decided we should probably go over to the grandmother’s house to check.  But before we all got into our cars, my phone rings and it was Tom’s attorney.  He tells me that he’s actually over at the courthouse with Tom trying to get an emergency hearing.  It turns out, he tried to have a hearing in front of the judge without telling me (which is not allowed) and the judge made him contact me to see if I could be available.  I was there at the courthouse with Nancy in less than 15 minutes.

Tom’s attorney made the argument again that the judge should keep the child here at least until the paternity tests were completed.  However, this time, not only did I ask the court to dismiss the case again, but I had with me 2 court orders from N. Carolina.  One was giving the judge in N. Carolina the case and the 2nd was giving Nancy custody of her son.  There was nothing left to say.  The judge dismissed the case and ruled in Nancy’s favor.  She could have her son back.

Now that our legal battle was over, it came down to how we were logistically going to get Nancy’s son back.  It turns out that Tom was smart and didn’t bring the child to court with him.  We didn’t know where the child was.  I demanded that they bring the child to the courthouse within an hour.  Tom’s attorney, upset that he finally lost, said in so many words, “we’ll bring him back when we feel like it.”  It was not the answer I wanted to hear.  They left the courthouse and I immediately contacted the police again.

We spent the rest of the day going to all of Tom’s relatives to try to locate the child.  After a day of searching, we were ready to issue an Amber Alert.  At around 6PM, we get a call that Tom and his attorney showed up at the police department and was ready to turn the child over.  Nancy and I were exhausted and I was just glad that we finally knew where her son was.

We raced towards the police station where Tom, his attorney and Tom’s mother was waiting with the child.  I took the son’s hand and I walked him over to Nancy.  Nothing much was said between Tom’s side and Nancy or I.  We packed Nancy into her car with her son and before she left I gave her my last piece of legal advice, “Don’t ever come to Massachusetts again.”

I want to tell you about a client I had last year who came to me with a big custody issue and how we worked together and resolved the situation.

My client, who I will call Nancy (not her real name), called me from N. Carolina in a panic.  I had not yet met her at this point and while I did my usual phone intake and consultation, she told me a fascinating story.  She was the mother of a 4 year old boy whom she had with the baby’s father, Tom (not his real name).  Nancy and Tom both lived in North Carolina when they were together and when the child was born.  They were never married but raised the child together for a very short time until Tom left and they broke up.  Nancy had custody, though not officially through the courts, and remained in N. Carolina.

Nancy and Tom got along as well as any set of parents raising a child would who were never married.   Nancy would periodically allow Tom to take the child for visitation and Tom would always bring their son back.  Tom eventually moved to Massachusetts to live with his own mother.

A couple of months before Nancy contacted me, she had dropped off their son here in Massachusetts for visitation with Tom.  The agreement was that their son would visit with Tom for a couple of months until the child’s birthday, which was when Nancy would come back to Massachusetts to pick up their son and go back to N. Carolina.  A couple of months passed and a few days before Nancy was scheduled to drive up from N. Carolina to Massachusetts, she gets served with paternity and custody papers from the family court here in Massachusetts.

Tom had filed for emergency custody of their son and now refuses to give him back to Nancy.  That’s when she called me.

Nancy soon came up to Massachusetts and her and I immediately went to the police department.  We explained the situation and requested that the police escort us to Tom’s home and get back the child.  The police at first did not want to get involved and they used the excuse that a family court case was pending and they can’t get involved.  After a long time with them, I eventually got the police to go with me to “keep the peace” in getting back the child.  I had managed to convince the police to do this because I explained that there is a paternity action filed and that means that Tom hasn’t yet been legally recognized as the father.  In other words, legally speaking, a stranger was holding my client’s son so the police had to act.

Though I typically do not like getting the police involved, I had to in this case.  Police intervention is drastic and often times traumatic for children.  Just think of Elian Gonzalez.  We arrived at Tom’s condo and we tried for almost 1/2 an hour knocking on the door and windows before Tom came to the door.  He saw the police and he knew why we were there.  Thankfully without much protest, he gave up the child to us and he was reunited with Nancy.

Unfortunately for Nancy, the case was far from over.  Since there was a paternity and custody hearing in 2 days, she had to stay in Massachusetts to sort this mess out.  She stayed in a hotel and spent time with her son.  Two days later, we were in court in front of a judge to determine paternity and custody.

Tom came in with his mother (the child’s grandmother) and an attorney.  I accompanied Nancy into the courtroom.  Both sides presented our case.  Tom’s lawyer tried to convince the judge that the child should stay in Massachusetts at least while the DNA test was pending and paternity could be determined.  I argued that the case should be dismissed entirely because the mother and child resided in North Carolina most of their lives and the case should actually be brought in N. Carolina and NOT Massachusetts.  In legalese, this Massachusetts court did not have jurisdiction over my client or her son.

The judge took a moment to consider and Tom commented that he thinks Nancy was using narcotics or drugs of some kind.  This was bad because this now opens a whole new can of worms.  The judge immediately ordered that both the mother and the father submit to urine drug testing in the courthouse while we waited.  The results came back a few hours later and both Nancy and Tom came back positive for marijuana in their system.

Several things I never understood was why Tom would bring up drugs if he himself was using.  Perhaps his lawyer didn’t advise him of the implications of his statements before a court.  I’m not sure.  The bad news now is that my client tested positive and now could be ruled unfit to be a parent, at least temporarily.  The good news is that Tom also tested positive.

After a grueling day in court (almost 8 straight hours), the judge made his decision.  He ruled that the child must stay in Massachusetts.  My client was devastated! (and so was I) Nancy ran out crying and I listened to the judge’s reasoning.  He wasn’t granting custody to either Tom or Nancy.  He ordered paternity tests to be performed in the meantime.  He didn’t want to make the determination of custody but was afraid that if he didn’t take “emergency jurisdiction” of the child and kept him in Massachusetts, he wouldn’t know how either parent might react considering they both tested positive for drugs.

The most heart wrenching part of that day was after leaving the courthouse, I had to go with Nancy to give her son back to Tom and his mother.  They were grinning.  We were not.  But I knew the fight was not over and after my client calmed down, I made her realize that this was just the beginning.

…to be concluded in part 2.