It Is Time To Give Unwed Fathers Some Rights

Issue May/June 2022 June 2022 By Nancy A. Morency
Family Law Section Review
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Nancy A. Morency

The rights of a father to his child born out of wedlock, compared to a father who is married to the child’s mother, are vastly different. Massachusetts statute provides that an unwed mother has sole custody of the child. An unwed father is therefore required to be proactive and establish paternity and rights to his child. The way the law is written enables a spiteful mother to initially deny a father parenting time and decision-making, even after several years of being a father figure to a child, which is not in the child’s best interest. 

The father’s lack of legal custody and parenting rights to a child born out of wedlock does not typically arise until after the parties separate or another life-changing event occurs that changes the parties’ status. While things are good between unmarried parents, no one thinks to acknowledge paternity or obtain a court order. Being on the birth certificate alone is insufficient. However, with more than a quarter of children born out of wedlock in Massachusetts, it is an issue that must not be ignored. A vast majority of the actions for care, custody and support are filed after the parties separate so the father can then establish his rights to his child out of necessity. Whether there is the concern that filing an action with the court may convey a message that the party is looking to terminate the relationship, or because it simply may not be known, the reality is that parties do not seek out an order for parenting rights until there is a problem. 

It comes as a shock to unwed fathers when they learn that they have no rights to their child. It’s a harsh reality that a father can support, raise, and be involved in the care of their child, but if they aren’t married to their child’s mother and there is no court order, then they must engage in a legal battle if the parties disagree. This is disruptive to the child on top of the breakdown of the family unit. 

Even if the child’s father is listed as such on the birth certificate, the father is required to go to court just to have parenting time if the mother is not furthering this paternal relationship. This can then lead to the necessity for urgent hearings to obtain basic parenting rights and can lead to a further deterioration of the parties’ relationship that will affect the child. 

Conversely, a father who is married to the child’s mother has more rights to his child than his unwed counterpart. Under M.G.L. c. 208, a father has equal rights as his wife to their child. It does not seem fair to unwed fathers that a marriage certificate provides greater parenting rights to their child. If the statute provided unwed fathers with the same rights as married fathers, then there would be fewer mothers attempting to assert control over the fathers’ rights to their child, slightly easing the burden on the court. Arguably, it is in the child’s best interest to not offer an unwed mother this ultimate control. 

As times are evolving and there are more unwed parents, the law also needs to evolve. Fathers are an important part of a child’s life. It is unjust that a father who has acknowledged paternity or who is listed on a birth certificate has fewer rights than the child’s mother. A change in legislation will eliminate the need for urgent hearings in an already overburdened court and give fathers the rights they deserve. It is in the child’s best interest for this legislation to change. 

Nancy A. Morency is an associate attorney at Gallant & Ervin LLC in Chelmsford and focuses her practice on litigation and family law in Massachusetts, New Hampshire and Maine.