|
Here is a courthouse in Plymouth County.
|
| NEVER MARRIED PARENTS
Massachusetts General Laws Chapter 209c is the statute that pertains to paternity, or children of unmarried parents. There are two complaints that may be filed related to never married parents. At the time of the child's birth, the parents are requested to sign a Voluntary Acknowledgment of Paternity. Assuming that both parents sign the acknowledgment, the father's name will then be placed on the birth certificate. However, in some instances, the father may, for whatever reason, not sign the acknowledgment, and therefore the father's name is left blank on the birth certificate. In the event that the father has not signed the acknowledgment of paternity, when either mother, father, or child seeks child support or other orders from the probate court, a Complaint for Paternity would be filed. However, if both parents have signed an Acknowledgment of Paternity, then the mother, father, or child would file a Complaint for Custody, Support, and Visitation, providing a certified birth certificate, including the date the Voluntary Acknowledgment was signed. In the event that there is an issue of custody or visitation for a child who is fourteen (14) years or older, the child shall be made a party to the action.
Pursuant to the statute, prior to or in the absence of a court order of custody, the mother shall have custody of the child born out of wedlock. This often causes confusion for parties prior to obtaining any orders from the probate court. The police do not always recognize and understand that the mother has custody without a court order. As a result, the police will often advise people to go to court to obtain a court order if they respond to a domestic abuse situation. There are several unique factors which the court must consider in making a custody order in a paternity matter. A court may order custody to one parent, or order joint custody, or may order custody to another suitable person, with the goal of preserving the relationship between the child and the primary caretaker parent. At any custody hearing, the court must consider where and with whom the child has resided within six (6) months immediately preceding the proceedings. The court would take note of those facts, particularly if the child has been living with only one parent for some time, and that parent has been solely responsible for meeting that child's needs during that time.
The court would also consider whether one or both of the parents has established a personal and parental relationship with the child, or has exercised parental responsibility in the best interests of the child. The court can award joint custody only if there is an agreement or the parents have exercised joint responsibility prior to the proceedings, and have the ability to communicate and plan with each other concerning the child's best interests. This is an important consideration that relates to the length of the relationship the father and mother had, either prior to and/or after the birth of the child. There is no presumption of shared legal custody at the temporary order stage.
Complaints are often filed by the Department of Revenue on behalf of a parent who has a child born out of wedlock and has been receiving either Transitional Assistance, MassHealth, or other services. Temporary Orders may be filed, and a hearing requested for Temporary Orders related to visitation, child support, and/or custody. At that time, orders will be issued regarding these, and there may also be a request on behalf of the alleged father to have a genetic marker test. In the event that there is a question as to whether or not an individual is the father of a child, it is essential that the father obtain a genetic marker test, which involves testing both parents and the minor child, prior to entering into any agreement or stipulation regarding child support. Case law suggests that in the event that an individual agrees that the child is his, and does in fact pay child support for a period of time, he may be obligated to continue paying child support even if a later DNA genetic marker test indicates that he is not the biological father. Individuals should consult with an attorney regarding this very important issue.
Each parent is responsible to contribute to the support and maintenance of his or her child. In paternity cases, the courts can, and must in certain circumstances, order retroactive child support to the date of the child's birth. As always, the court must take into consideration the ability of the parent to make child support payments during that retroactive period of time. Additionally, the court may order attorney's fees for the parent seeking to have paternity adjudicated/determined, as case law suggests that child support should not have to be utilized to compel a parent to pay his or her child support obligations. Specific questions regarding whether or not to file a Paternity Complaint and/or a Complaint for Custody, Support, and Visitation should be considered carefully. Consultation with an experienced family law practitioner is essential, as there are financial issues and responsibilities that need to be considered, and addressed appropriately, at each step of the process, commencing with the filing of a complaint, ending with a judgment of paternity.
|
|
|
LAW DAY
 May 1st is Law Day. Law Day is a day set aside to celebrate the rule of law of our country. It focuses on the law and the legal processes that contribute to the freedoms that we, as Americans, share. The first Law Day was celebrated on May 1, 1958, created by a proclamation by President Dwight D. Eisenhower. Law Day was formerly recognized by a joint resolution of congress in 1961. The official date for Law Day is May 1st, although celebrations often take place either before or after that date. Some bar associations celebrate Law Week. In Plymouth County the American Bar Association selects a theme. 2009 is "A Legacy of Liberty, Celebrating Lincoln's Bicentennial." 2009 marks the bicentennial of Abraham Lincoln's birth, who, according to the American Bar Association, is one of our greatest and most eloquent presidents. Lincoln devoted much of his adult life to the practice of law, and his experience in the law helped form both his actions and his oratory skills. For Law Day 2009 the American Bar Association encourages local bar associations to celebrate and commemorate Lincoln by exploring the theme A Legacy of Liberty.
Throughout the state, but particularly in Plymouth County, Law Day is an annual celebration. Different programs and activities are schedule in many of the courts within the Commonwealth. In Plymouth County, as part of the May 7, 2009 celebration of the 150th anniversary of the Superior Court, many Law Day activities are scheduled. Additionally, there will be programs in the Hingham and Brockton District Courts. For further information, please see
www.plymouthcountybar.com. Also, for further information about the American Bar Association or about Law Day 2009, please see
www.abanet.org.
|
|  Brockton Superior Courthouse
The picture on this month's newsletter is the Superior Court in Brockton on Belmont Street. There is also a Superior Courthouse in Plymouth, located in the new courthouse at 52 Obery Street. Prior to the new courthouse opening in 2007, the court was located on Court Street in downtown Plymouth.
The Plymouth Superior Court is celebrating its 150th Anniversary celebration this year. On May 7, 2009, there will be a daylong event celebrating its 150 years of history. The celebration will also include and incorporate the annual law day celebration at that time. High School students have been invited to tour the courthouse, and participate in discussions with judges. There will be historical exhibits on display in the courthouse lobby. Additionally, a naturalization ceremony for new citizens and their families, as well as distinguished guests who have previously been naturalized in Plymouth County, will take place in late morning. There will be an afternoon reception, and tours of the courthouse that will complete the day. Please check the PCBA (Plymouth County Bar Association) website for an agenda of the day's events,
www.plymouthcountybar.com.
|
|
| |
|
| PROBATE COURT FILES . . .
DID YOU KNOW?
The majority of Plymouth Probate & Family Court files are kept in Plymouth. However, all paternity and restraining order files are housed in the Brockton courthouse. Please keep that in mind when you wish to review the original court file.
In Norfolk County, which has only one session, all of the court files are at the Canton location.
|
|
COMING IN NEXT MONTH'S ISSUE . . .
Child Support Payments and the Department of Revenue
|
|
If anyone has a topic that would be of general interest, please do not hesitate to contact the office and let us know what items would be of general interest to the readers of this newsletter.
|
|
