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"Defacto" parenting status for purpose of joint physical custody for a child.

Boston, MA |

I am married to a same-sex partner. Currently going through a divorce. She gave birth to a 2 year old just before we were married. I never adopted her, nor is she my biological child but it's clear to everyone the child and I are both very much emotionally involved and I am a "defacto" parent.

My question is this. The party's stipulated to joint physical custody with a 50-50 visitation schedule. However, if NO Petition in Equity was filed to establish my legal "Defacto" parental status, then do I really have a legal right to physical custody with just a divorce decree and/or stipulated agreement? Don't I need to establish my rights in equity first?

Attorney Answers 4

Posted

The Probate and Family Court does, as you allude, have broad equity powers, including powers with respect to child custody and visitation. Case law tends to suggest that in a situation like yours, if you are arguing de facto parent status, you would be wise to also file a Complaint in Equity while the divorce is pending. The Complaint in Equity will most likely track with the same judge hearing the divorce, and hearings could be consolidated. If you do not file a Complaint in Equity, you could always try to argue that the issues relative to custody and visitation should still be heard through the divorce based upon the Probate and Family Court's broad equitable powers, but your argument would be much stronger if you file the Complaint in Equity.

You should speak with a knowledgeable Family Law attorney to discuss your situation in greater detail. Since the divorce is already pending, you need to act quickly. Most attorneys, including my firm, offer free initial consultations. Good luck!

NOTE: This answer is for informational purposes only. By responding to this question, this attorney’s answer does not create an attorney/client relationship with the person posing this question, and there is no attorney client privilege between you and the attorney responding. The answers provided are based upon the facts presented. Since many cases are very fact-specific, any person posing questions on this site should consider consulting with an attorney to discuss his/her case in greater detail to provide a more thorough and detailed analysis of the question posed. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in your area who regularly practices in the subject matter which your question is about. The law changes frequently and varies from jurisdiction to jurisdiction.

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Posted

Unfortunately, there is not enough information here to answer this question definitively. This is an area of law that turns on the specific and exact language of the agreement. You should bring the agreement and documents to an attorney to find out a definite answer for your question.

Generally, you can enforce a contract regarding custody so long as it was signed off by a judge. However, it sounds like the judge never agreed to the custody agreement so there may not be an enforceable claim. . .

Sorry to not be of more help!

Please note: any comments made on this website relate to general trends in law and are not to be understood as legal advice establishing a lawyer-client relationship. Please consult an attorney admitted in your jurisdiction before making any legal decisions. I am a licensed attorney only in the Commonwealth of Massachusetts and in United States District Court for the District of Vermont. For more information about the New England Law Group, P.C. Please contact 401-316-0007 or www.lawgroupne.com

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Posted

I think you are right to be concerned. The divorce statute gives the Probate and Family Court authority to determine custody, etc. regarding a "child of the marriage". Even an equity judgment that you are a de facto parent of the child does not necessarily make the child a child of the marriage. Without your adopting the child, unless the child was the result of artificial insemination through a medical facility, the male genetic material provider still has parental rights and would have to be joined in any custody action.

If you had gotten married before the child was born, Mass. General Laws chapter 209C, section 6, MAY have given you legal status of parent status.

I say "may" because although the Mass. Equal Protection Act and the Goodridge case generally work to give same gender partners equal rights and eliminate distinctions of gender in statutory language, I have not seen a case since In re Tammy allowed same sex parents to adopt the biological child of one of them that applies 209C:6 to a female de facto parent of another female's child.

If neither biological parent ever challenges you and your soon to be ex-spouse falsely claiming the child as a child of the marriage, the divorce decree may be enough. But, if there is a chance that either bio parent might try to undo it later and assuming that adoption is no longer an option as far as either of the bio parents are concerned, you would be better off with a formalization of your de facto parent status that is applicable as against both bio parents in order to make your custody agreement an order of the court.

You need the advice of an attorney familiar with and friendly to same gender parental relationships to help you through the legal maze of effectuating your and your spouse's current desires in regard to the custody issue. You might want to use the Find a Lawyer function here on avvo.com to search for an attorney experienced in same gender parenting matters or submit your question to gladanswers.org or use the GLAD Lawyer Referral Service: http://www.glad.org/rights/infoline/lawyer-referrals

NOTE: This answer is made available by the lawyer for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in your area who regularly practices in the subject matter which your question is about. You should develop an attorney client relationship with the lawyer of your choice so that your communications will be subject to the attorney client privilege and have the other benefits of a professional relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific matter as partially described in the question.

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Posted

You mentioned your partner gave birth just before you were married--were you married within 300 days of the child's birth? If so, the child is a child of the marriage because the presumption of parentage written into MA law applies regardless of the parents' genders/biological sexes in Massachusetts and there is no need for an equity action to establish parentage.

If this isn't the case, I would recommend bringing your agreement to an attorney to discuss the details of your case in a bit more detail. Parentage has the potential to get complicated, and its worthwhile to take the time to go through things in detail and understand the strengths and weaknesses of your position and your options for moving forward.

As a side note--my read on the case law in general is a bit different than everyone else's--I don't believe a separate equity action is necessary, and further, there is actually case law stating that filing a separate equity action while a divorce is pending between the parties is inappropriate.

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6 comments

Michael L Rich

Michael L Rich

Posted

I'm sorry, Atty. Samuels, but I think you have misread the presumption. M.G.L. c. 209C, sec. 6, makes a child a child of the marriage "In all actions under this chapter a man is presumed to be the father of a child and must be joined as a party if: "(1) he is or has been married to the mother and the child was born during the marriage, or within three hundred days **after the marriage was terminated** by death, annulment or divorce" ... These provisions of 209C:6 may apply if "father," "man" and "paternity" can apply to a same gender partner: (3) after the child’s birth, he married or attempted to marry the mother by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and (i) he agreed to support the child under a written voluntary promise, or (ii) he has engaged in any other conduct which can be construed as an acknowledgment of paternity; or (4) while the child is under the age of majority, he, jointly with the mother, received the child into their home and openly held out the child as their child; or (5) he has acknowledged paternity in a parental responsibility claim as provided in section four A of chapter two hundred and ten and the mother, having received actual notice thereof, has failed within a reasonable time, to object thereto" But there was nothing in the question to indicate that the additional factors there had occurred.

Jaye L. Samuels

Jaye L. Samuels

Posted

no need to apologize, I was conflating 1 & 3 in my head. in either case, the facts offered suggest the parties have adjudicated parentage through the probate court--an agreement incorporated in a divorce decree. in any case, if this hasn't occurred yet, a voluntary acknowledgment (and if necessary due to the circumstances of conception, voluntary denial by the bio dad) can merely be filed in the divorce without a separate equity action. unfortunately away from my computer right now, but I recently had to do some pretty hefty writing in a 'stranger to the marriage' case. it's pretty well-established that equity or 209c actions are intended to resolve parenting disputes between parents who have never been married, not co-parents who are married.

Michael L Rich

Michael L Rich

Posted

Thanks for the clarification. I referred to 209C because this child is not a child of the marriage, though I accept the asker's assertion that she is a de facto parent. Unless the child was conceived through artificial insemination with an anonymous donor, isn't the asker more like a loving step-parent who has not adopted the child of her spouse's previous relationship than a parent who subsequently married the mother of her child? Don't feel the need to respond here, though I would love to continue the philosophical discussion. Your extensive research seems as if you would be a good choice for the asker to bring her case to.

Jaye L. Samuels

Jaye L. Samuels

Posted

Not a problem. I think part of our difference in opinion is based on making different assumptions about the circumstances of conception--and on both ends, their assumptions. You assume the other biological parent is not an anonymous donor, I've assumed they are. If they aren't an anonymous donor, they could fairly easily be joined to the case and file a voluntary denial (assuming that regardless of the circumstances, they were intended as only a donor rather than a third parent), so long as everyone involved is on the same page. I think the question really turns on the circumstances of conception and whether there is a third person out there with a "superior right" (for lack of a better term) to assert their parentage. If that person does exist, it's potentially a loving step parent/absentee bio parent situation; if that person doesn't exist and both parties were part of the decision to conceive with an intent to coparent, it seems like it would be discriminatory (against the child and the parents) to treat that child any differently than a child conceived by two parents who later married and thus 'legitimized' their child. There's also some interesting case law that would allow for a child to have three legal parents since children are not in privity with their parents when it comes to this. Parentage can be adjudicated between married parents, and then a 209C action can be filed against a 'stranger to the marriage' on behalf of the child, with both adjudicated parents having obligations to pay support/have rights to a relationship with the child (or more accurately, with the child having the right to receive support from/have relationships with these two parents).

Michael L Rich

Michael L Rich

Posted

Excellent analysis, Atty. Samuels. I couldn't tell from the question whether the spouse's child was conceived before or during the relationship. With our comment chain now added to your answer, I will click "I agree" and hope that someone else will as well so your answer can move to the top.

Jaye L. Samuels

Jaye L. Samuels

Posted

I always prefer analyzing these sorts of issues through discussion, especially with an attorney who I know to be knowledgeable and thoughtful. Thank you, and have a great day.

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