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When Life Gets Legal SM

Unmarried Parents are still Parents

An article by Shareholder Julie A. Dialessi-Lafley

More and more frequently people are opting not to get married but are still desirous of having children and becoming parents whether or not they are in a committed relationship with their partner.  The decision to have a child or children creates a permanent connection to the other parent regardless of the marital status of the parents.  

Unmarried parents have various types of relationships.  We see unmarried parents that live together, some have separate households but spend time together, many are not together any longer and may have new relationships.     The unmarried parents need to navigate how to bring up their child together while being apart.  This requires that both parents understand that the other parent has a right to be in the life of the child.  The law supports the idea that father’s and mother’s both have the right to parent their children even if unmarried.  

Emotions of the parties often cloud their judgment when considering the role of the other parent in the life of the child. Did the parties break up and one (or both) people move on? Was the relationship short term without commitment and lacking a foundation between the parents?  The history of the relationship is certainly impactful on the parent; however, first and foremost parents need to be reminded that Father’s need to be responsible, present and cooperative with the mothers of their children and Mother’s need to encourage, support and accept the relationship a child has with their father. 

The standard in the Commonwealth of Massachusetts to determine a parenting plan and custodial relationship with children and parents starts with a best interest standard. The presumption is that both parents should play a role in the life of a child unless it is not in the child’s best interest. It is often difficult for a parent to separate their feelings about the other parent when trying to determine the parenting relationship.  It is clear however that simply because someone is not a good partner does not mean they should not be in the life of their child.   

When parents are not married the law provides that absent an agreement or court order otherwise, the mother has sole legal and physical custody of the child.  This is rebuttable and is not intended to prevent Fathers from having equal footing in the lives of their children. More times than not with good communication, the parents can develop a parenting plan which provides for both parents to be involved in the legal decision making for the major medical, educational and religious decisions of the child. This is what is known as legal custody.  Parents can agree to share legal custody and make these major decisions together.  If they are unable to agree a court may order shared legal custody if a history of the parents being able to work together to make these decisions can be demonstrated.  Even if the court does not order shared legal custody, both parents still have the right by statute to have access to the medical and educational information and records of the child.  It does not mean that a parent is excluded from knowing these things about their child.    

There are always exceptions which need to be considered such as domestic violence or history of restraining orders which impact the ability of the court to grant certain relief if the parents are unable to agree.  

It is worth reiterating that if the parents are able to put their feelings about the relationship with the other parent aside, and focus on the child, they can in most – certainly not every – circumstances develop a parenting relationship where both parents can be involved in the child’s life.  

Parenting Plans which deal with the actual parenting time the parties spend with the child should include the normal parenting plan, a holiday schedule and vacation schedule so that there is a clear plan for each parent’s time with the child. The location of pick up and drop off of the child, the specific time for exchange of the child, and who may transport the child are critically important in developing the parenting plan. Being clear and specific with these terms may create a plan which will reduce conflict between the parties when they may not both have the same philosophy about co-parenting with the other parent.  Parenting plans should also deal with child support, health insurance, uninsured medical expenses, extracurricular activities and payment of those expenses, education of the child, and the primary residence of the child at a minimum. 

The parenting plan also can include terms around communication. Communication is key and throughout the child’s life, there are going to be countless times when the parents will need to discuss or exchange information with the other parent, make a decision together or attend parent teacher conferences, activities or countless different life events. 

A method of communication can be defined such as through text, a parenting application which tracks communication, or through parent meetings on a scheduled basis.   Regardless of the method, it is often a key to successful co-parenting for there to be set rules as to where, when and what you talk about. 

By agreement, parents can include terms around phone calls with the child, face-time or other video calls with the children, as well as any other contact they want to have in between their parenting time.  Language which fosters a positive and supportive parenting relationship between the child and the other parent can be included by agreement of the parents to prevent disparaging disrespectful discussions. 

If the parents are unable to agree on how to develop a parenting plan, the court ultimately has the jurisdiction to make the decision.  The Court will do its job but most every Judge will encourage the parents to come to an agreement if they are able to do so as they know their child better than anyone.   

If the court is ultimately the decision maker, the court will consider the age and developmental stage of the child, the individual needs of the child, history of the relationship between the parents, how close parents live to each other, parents’ work schedule, parents’ problems such as substance abuse, domestic violence, child abuse and a criminal record.   

Naturally, this is not the exhaustive list and the topics of this article are general.  When navigating these issues, you should seek advice of an attorney in order to understand all the issues which need to be addressed and understand your rights as a parent.  

Julie A. Dialessi-Lafley is a Shareholder with the law firm of Bacon Wilson, P.C., Attorneys at Law. Julie is a certified mediator for Dispute Resolution Services, Inc., a Trustee of Top Floor Learning Center, Co-President of the Italian Cultural Center, and a member of the Lighthouse Advisory Group. She is the chair of the firms Domestic Law department, and can be reached at 413-781-0560 or at [email protected]