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I have a son with an ex-girlfriend i have shared primary custody with. If she leaves him with a sitter am i able to take him?

Fitchburg, MA |

Have been refused visits and visitation without her presence. No court orders preventing visits or custody. No court orders outlining custody. Our situation now is no different than the day he was born only not together any longer.

She has refused me visits without her presence. I havent been allowed to see him since feb 14th 2012. If hes left with her parents or sisters am i legally allowed to go and take custody of him, even if i only want a couple hours of visitation?

Attorney Answers 4


  1. No, under the circumstances that does not sound like a safe approach. Have you established paternity yet, perhaps by being listed on the birth certificate? What you need to do is file a Complaint to Establish Paternity (if not) or a Complaint for Custody (if so). It actually does not sound as if you currently have shared primary custody; it sounds like you're essentially restricted by the mother to supervised visitation. I recommend speaking with an attorney.


  2. No. In Massachusetts, where the parents are not married, the mother is presumed to have custody. Since it does not seem like you have had paternity judicially determined, you should consider filing a paternity action in the probate and family court. In doing so, you should also seek custody and support orders. Are you currently paying child support, either voluntarily or per court order?

    Answers to posted questions are for general interest only and do not constitute legal advice. No attorney-client relationship is established by virtue of any answer posted by the attorney.


  3. Are you on the child's birth certificate is the first question? If you are, you are filing a complaint for custody and parenting and marking a motion to establish a parenting schedule. The good news is, the court is going to look at what the parenting schedule was for the last 120 days which I presume is while you were still together and that schedule will corroborate your assertion that you had sustantial involvement with your son and responsibility for his care. It is not uncommon for Mom's to not require supervision of child/parent contact when they are "in" a relationship with that parent and then to reverse that posistion once the relationship is over: notwithstanding the seeming unreasonableness of this, Mom is presumed to be the full custodial parent of the child until the court determines your rights so taking your child from the babysitter is not a good idea - going to court and obtaining a parenting order within ten or so days is and I don't reccomend any delay on taking this next step.


  4. It depends on any court orders.

    If there is no court order, you should seek one that permits this
    contact.

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