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Earlier this week, the Supreme Judicial Court tackled a case that seems just as suitable for daytime television as it is for a courtroom, and signaled it may broaden the rights of same-sex and / or non-biological parents yet again. As briefly as possible, a woman gave birth while living with a man, and the two of them both executed a voluntary acknowledgment of paternity upon the child’s birth. Unbeknownst to the man when he signed the acknowledgment though, the woman had married someone else more than 14 months prior to the child’s birth. Almost a year after the child’s birth, and presumably because the man and woman separated, the woman then sued the man in the Probate and Family Court to establish a support, custody and / or visitation rights over the child. That case resulted in a judgment for shared legal custody and sole physical custody to the man.

Several months later, the husband then sued the woman for divorce, without identifying any children of the marriage. That case was dismissed however, because the woman passed away while it was pending. Right after her passing, the Department of Children and Families (DCF) got involved, and filed suit in the Juvenile Court to obtain custody over the child (wait, the child was supposed to be in the man’s custody, not the deceased woman’s???). The husband then filed a motion to vacate the Probate and Family Court judgment that gave custody to the man, even though the husband also signed an affidavit denying paternity of the child!

After the husband also consented to any adoption placement that DCF would see fit, the man then filed a separate paternity suit, requesting the Probate and Family Court to conclusively establish who the child’s father was. As part of that case, the man took a genetic marker test (DNA test), which proved that the man was NOT the father (oh my). Following the test results, the Probate and Family Court then dismissed the paternity action filed by the man, and also vacated the custody judgment upon motion of the attorney for the child, ruling that the voluntary acknowledgment of paternity was a fraud on the court. The man then appealed the decision to vacate the original custody award.

The statutory law required that the husband and wife sign an affidavit together, denying the husband’s paternity, before the wife and other man’s acknowledgment could be given legal effect. As a result, the Supreme Judicial Court really had no choice but to uphold the decision to vacate the original custody arrangement. Remember, the woman was now dead, so there was no way to comply with the statutory law that they both sign such an affidavit. Although the SJC can interpret statutory laws, and strike them down if they do not meet certain requirements, it cannot arbitrarily change them, resulting in the decision.

But the story did not end there, as the SJC did explicitly state that the man’s only remaining recourse to establish paternity, was to file a new action requesting such. It stated this even though it also pointed out that the existing case law (which the SJC can change), only gives standing to a putative father to a married woman’s child, if the putative father claims a substantial relationship with the child and alleges to be the biological father (which the man in this case knows he is not). Although the SJC explicitly stated it was not yet modifying the existing common law requirement that only a putative father who alleges to be a biological parent can sue to establish paternity of a child born to a married woman, the divorce and family law lawyers at LaFountain & Wollman, P.C., believe such a change is inevitable. As any Massachusetts divorce or family law attorney can tell you, the Massachusetts courts have for years been a leader in providing equal rights for same-sex couples, which inherently require equal rights for both biological and non-biological parents (at least whenever same-sex couple have children).

About the Author
Attorney Nicholas J. LaFountain has extensive experience litigating and negotiating civil disputes of many types. He has been successfully representing clients in the courtroom since 2004.