Boston Divorce Lawyer – Boston Divorce & Family Law Attorney Blog

The video above is about a father in Texas that later discovers that the baby he thought was his, turned out to be someone else’s.  However, the family court in Texas still required him to pay child support for that child.

You think that can’t happen in a state like Massachusetts?  Well, you’re wrong.

In Massachusetts, if a “father” is in a situation where he assumed the role of father for a period of time that caused the child to know only him as the father, then despite the fact that he is not actually the biological father, may not matter.  Many factors play on a situation like this and it gets complicated from case to case, however, the important thing to take away is that if there is a child born out of wedlock, and that child is alleged to be yours, you should request a paternity test right away.

Part III of an ongoing series exposing the truth about Family Law Myths.   To see the truth about more Family Law Myths, see Parts I and II.

Myth: If I’m completely uncooperative, I can stop the case from moving forward.

Truth: All too often, people believe that if they refuse to participate in the process (divorce, child custody, child support, alimony, paternity, etc.), the process can’t move forward.  The truth is that while this might stall the proceedings temporarily, it won’t work for long.  Not only will the process move forward, but it will more than likely end with a final result that you absolutely hate.  Why?  The courts can only make decisions based on what is presented to them, and the other party has no responsibility to tell them your side of the story.

Your failure to respond to filings and refusal to show up for court dates hurts only you.  Only you (and your attorney) can defend your interests.  The thought of going to court makes everyone anxious.  It’s not a pleasant way to spend your day.  But what’s at stake is too important to let anxiety get in the way.  If you ignore the process, the process will go forward, ignoring you.

Myth: A good lawyer can be found cheaply or for free.

Truth: You wouldn’t walk into the super market and ask for free food.  A brand new car with an incredibly low price tag would probably make you suspicious.  So why would you expect a good family law attorney to be cheap or free?  Like all other things, when it comes to legal services, you get what you pay for.   Why would you want to pinch pennies with what is at stake in a family law matter?

If you truly cannot afford a family law attorney, it may be worthwhile to look into pro bono (free) legal services that may be available to you.  There are a few things worth remembering when looking for these services:

-           Just calling private attorneys offices and asking for free or discounted rates likely isn’t going to get you free or discounted services.  It’s not that attorneys don’t want to help you, it’s that they can’t afford to!

-          Family law matters are matters of civil law.  This means you don’t have the right to an attorney.  That only applies to criminal matters.

-          Legal services agencies (agencies that receive funds from the Commonwealth to provide free legal services) can only provide services to individuals who, at the very least, meet income requirements.  In lawyer terms, you must be “indigent.”  This typically means your household’s income is equal to or less than 175% of the Federal Poverty Line.  Right now, that’s approximately $13,500/year +$4,500/year for each additional family member living in the household.

**Even if you meet this requirement, different agencies have different “priorities” for service.  These priorities are set by the Commonwealth when the agency is created.  While the agency might have discretion to accept other cases, they also have practical limits like their funding and their caseload.  Often these agencies can’t accept all cases that fall within their priorities, let alone accept ones that fall outside of them.

In my earlier posts on paternity, I discussed the importance of Genetic Marker Testing, even where both parents are certain about paternity.  Obviously, in such a situation, asking for a test can be an uncomfortable situation.  The only thing that could be more uncomfortable is expressing doubts years later, when paternity can’t be rescinded, and your child is old enough to remember the experience.  In other words, having a Genetic Marker Test done early can save everyone involved a lot of heartache later.

Genetic Marker Testing is provided by the Department of Revenue for little or no cost (based on the parties’ needs.)  You can fill out an application for services at their website, or file a motion in the Family and Probate Court for an order to have the testing done.  Once this testing is done, both parents can voluntarily acknowledge paternity without any doubt, and feel secure in knowing they are making the right decision.

You’ve either voluntary acknowledged your paternity or you have been adjudged to be the parent of a child.  What now?  Being legally recognized as a child’s parent comes with a number of rights and responsibilities.  Key to all of these is one idea:  the best interest of your child.  All children have the same rights when it comes to their parents, regardless of his or her parents’ marital status at the time he or she was born.

Being legally recognized as a child’s parent means that you can now seek visitation with and/or custody of your child.  Until the court enters an order to the contrary, when parents are unwed, the mother has sole physical and legal custody of the child by default.   (If you’re unfamiliar with the difference between physical and legal custody, see my earlier post.)  While a court may be hesitant to change this arrangement (as stability is typically in the best interest of a child), establishing some sort of visitation order shouldn’t be too difficult.  Having a meaningful relationship with both parents benefits a child, and if both parents can get along well enough to work out the best schedule for everybody involved, even better!  Visitation orders can range from a simple statement that the parents will work out something that works to incredibly detailed documents covering a host of provisions, like what time and where visits will take place and who will transport the child.

Along with the right to spend time with your child, being legally recognized as a child’s parent comes with the responsibility of providing your child with financial support.  If you do not have physical custody of your child, the court will enter an order of support outlining the amount of child support and how it will be paid (how often, whether it will be paid directly to the other party or through the Department of revenue, etc.).

With these rights and responsibilities now at your feet, it’s important to at least consult with an attorney so that you can fully understand their scope.

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.