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Paternity - Boston, Framingham & Worcester
Below we have provided answers to many of the common questions that we are asked about Paternity actions. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
What is a Paternity case?
Paternity is short for a Complaint to Establish Paternity, which is the type of action in Massachusetts that we use to obtain a Court order defining who the Father of a child is and what rights and obligations the Father and Mother have with respect to the child. Depending on the facts of your case you might be required to file a Complaint for Support, Custody and Visitation instead of a Complaint to Establish Paternity. Both of these types of Complaints will be referred to as Paternity Complaints below.If you are a parent of a child born out of wedlock, it is important that you understand your rights in a Paternity case in Massachusetts. Below we have provided answers to many of the common questions that we are asked by our clients involved in Paternity cases. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
What is the difference between a Complaint to Establish Paternity and a Complaint for Support, Custody and Visitation?
There are two different Complaints in Massachusetts that provide grounds upon which the Probate & Family Court can make decisions relating to the care and support of a child born out of wedlock. It is important that you file the correct Complaint depending on the circumstances in your case.Complaint to Establish Paternity:
A Complaint to Establish Paternity is filed when the Father has not yet been adjudicated to be the Father of the child in question. This means that the Court has not yet recognized that the alleged Father is actually the legal Father of the child yet. Usually this is because the Father did not sign a Voluntary Acknowledgment of Paternity at the time of the baby's birth and was not placed on the baby's birth certificate.
Either parent can file a Complaint to Establish Paternity. Once the Father has been adjudicated to be the Father, either through a DNA test or by agreement of the parties, then the Court may make decisions regarding appropriate child support, child support arrears, and custody and visitation plans.
Complaint for Support, Custody and Visitation
If the Father has already signed a Voluntary Acknowledgment of Paternity or otherwise been adjudicated by a Court to be the legal Father of the child, then there is no need to establish Paternity. Therefore the Court can move right to the issues of support, custody and visitation.
For this purpose the Court requires that you file a Complaint for Support, Custody and Visitation. Once filed the court may make decisions regarding appropriate child support, child support arrears, and custody and visitation plans.
How do I know if the Father signed a Voluntary Acknowledge of Paternity?
Usually if the Father has signed a Voluntary Acknowledgment then his name will appear on the birth certificate. You are required to file the birth certificate with the Court whether you are filing a Complaint to Establish Paternity or a Complaint for Support, Custody and Visitation.Do I have to Answer a Paternity Complaint?
If you are served with a Paternity Complaint you are required by the Court to file an Answer within twenty (20) days stating whether or not you agree with each allegation made in the Complaint. In addition, you have the right to file a Counterclaim and in many cases we recommend that a Defendant file a Counterclaim to inform the Court of their requests in the process and to reserve their right to proceed with the case even if the Plaintiff changes their mind. If you are served with a Paternity Complaint it is important that you consult with an Attorney as soon as possible so that an Answer is filed prior to the passage of the twenty (20) days.What if I have multiple children out of wedlock?
If you have multiple children out of wedlock, even if they are all with the same Father, you must file a separate Paternity Complaint for each child. If you have multiple children with the same Father, you can request that the Court consolidate the cases so that they can all be heard at the same time.What are Temporary Orders?
Once a Paternity Complaint has been served, either party has the right to file a Motion with the Court, which is a written request that the Court Order that something happen in your case. These can include requests that the Court order a party to comply with discovery or requests that are specific to your unique situation.Often it is necessary to ask the Court to make certain Temporary Orders, which are Orders that will allow you and the other parent to find a suitable temporary situation while the paternity case is pending, including providing for who the child will live with, whether there will be a temporary visitation order, and how much temporary support will be paid, etc. More specifically it is typical to request one or more of the following from the Court on a temporary basis: Physical and Legal Custody Orders; Visitation Orders; Other Parenting related Orders; Health Insurance Orders and Child Support Orders.
These are just examples of the types of Motions that may be filed in your case. These specific Motions may not be necessary in your case, but various other Motions may be appropriate. It is generally the Court's preference to maintain the status quo as much as possible during the case. However, the Court will recognize changes that need to be made when the current living or financial arrangements could have a negative impact on your or the other party's financial future, or have a negative impact on the health, safety or welfare of you, the other parent, or the minor child.
These Temporary Orders will usually remain in effect until there is a final hearing or trial of your case, at which time the Court will issue more permanent orders. Temporary Orders can only be changed upon the showing of an emergency or a significant change in circumstances.
In most cases, both parties must be physically present in Court for all scheduled Court hearings especially any hearings on Motions having to do with custody or financial matters.
What is Discovery?
After the service of the Paternity Complaint and filing of the Answer, you are required to exchange certain information with the other parent in order to allow you both the ability to make informed decisions regarding the settlement of your case. In addition, if you are unable to reach a settlement of your case, the documents and information produced during discovery will make up the evidence that you will present to the Judge at a trial. This process of exchanging information is called Discovery.This process is very important because if you do not obtain enough information about the facts of your case, you will be unable to present a complete case to the Judge, and unable to evaluate intelligently settlement proposals made by the other parent. For example, if you do not have information about the other parent's income, you will not know whether or not you are receiving a fair child support order.
The goal of discovery is full disclosure of all assets, liabilities, income and expenses. The process of disclosing this information begins with the Rule 401 Financial Statements, described further below.
The total length of time to complete discovery varies according to the complexity of the issues involved, the difficulty in obtaining the requested information, how hard the other side fights, and the need to obtain outside expert advice with regard to certain aspects of the case (such as an evaluation of the parenting fitness of the parties by a Guardian Ad Litem).
Discovery can include written questions called Interrogatories, Requests for Production of documents, under oath examination of the other parent or third parties in Depositions, and Requests for Admissions. The type of discovery required for your case will depend on many factors and the specific facts of your case will dictate the amount of discovery needed.
What is Mandatory Self-Disclosure (Supplemental Probate Court Rule 410)?
Supplemental Probate Court Rule 410 ("Mandatory Self-Disclosure") provides that, within 45 days after the date of service of the Summons, each party must serve on the other party specific documents designed to disclose the basic financial information necessary to settle a paternity case. This includes tax returns for the past three years, last four (4) paycheck stubs, and health insurance documentation. A copy of Rule 410 is available here.You should immediately gather these documents and provide them to your attorney so that they can be provided to the other side as required.
Do I have to fill out a Financial Statement (Supplemental Probate Court Rule 401)?
Supplemental Probate Court Rule 401 provides that, within 45 days after the date of service of the Summons, each party must serve on the other party a complete and accurate financial statement showing, insofar as possible, the assets, liabilities and current income and expenses of both parties and children involved in the case.The form of the financial statement which each party must complete is dependent upon his or her income. A party whose income equal or exceeds $75,000.00 must complete the long form financial statement. A party whose income is less than $75,000.00 must complete the short form financial statement.
In the event a hearing on a motion for temporary orders or a pretrial conference is scheduled, financial statements by both parties shall be filed with the court and exchanged between the parties no later than two (2) business days prior to the hearing or the conference without the necessity of a request for such statements.
Either party may request a Financial Statement from the other every ninety (90) days and if such a written request is made, then a Financial Statement shall be filed within ten (10) days.
You should immediately begin working on your Financial Statement and provide a draft copy to your attorney. It is very important that you complete this document accurately, and completely. The Financial Statements are signed under the pains and penalties of perjury. The consequences to lying or filing an incomplete Financial Statement are significant, and could include a Judge finding you to be an unreliable witness at trial (i.e. take all relevant testimony from the other parent only). In addition, if a settlement is reached in your case and it is later discovered that a particular fact was left off your Financial Statement, the settlement could be voided for fraud.
You should take particular care in completing your Financial Statement and err on the side of including everything. If you are not sure if something belongs on a Financial Statement you should consult with your attorney.
How much Child Support will I get?
How much Child Support will I pay?
Child Support is paid by the non-custodial parent to the custodial parent for the support of the children. Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. You should consult an attorney to discuss what facts in your case might warrant a variation from the formula.To view the formula and calculate your Child Support view our Massachusetts Child Support Guidelines Worksheets click here.
Can I get past Child Support?
Will I have to pay past Child Support?
In a Divorce case, a custodial parent cannot receive any child support for time prior to the filing and service of the Complaint. This is because there is a presumption that the parents lived together and shared income until the case was filed. In a Paternity case there is no such presumption and a custodial parent can request child support arrears dating all the way back to the birth of the child.There are a number of factors that the Court can consider in determining the amount of and the appropriateness of a child support arrearage and you should consult with an attorney to discuss these factors, especially since this can often be a very significant amount of money.
What is the required Parenting Course?
Under Standing Order 99-1 of the Probate & Family Court, if you have any minor children at the time of the filing of a divorce case, you are required to attend the Court-sponsored Parents Apart education program before you can present either a settlement of your case, or present your case for trial. Some Judges will also require that parents in a Paternity case take the course as well. A brochure which lists the names, addresses and telephone numbers of the various organizations that provide this program, in alphabetical order by town, is available by clicking here.If the Judge orders it in your case, you should immediately enroll in and attend this course because your case cannot end until you have completed the course, which consists of two 3 hour sessions. After completion of the program you will be provided with a goldenCertificate of Completion, which you must provide to the Court. If you give this golden copy to your attorney, they can ensure that it is properly filed with the Court and this requirement fulfilled.
What is a Pre-Trial Conference?
Approximately six (6) months after the filing of a Paternity Complaint the Court will schedule a Pre-Trial Conference. If the Court does not automatically schedule this conference, then either party can request that a Pre-Trial conference be scheduled by filing a written request with the Court. The goal of a Pre-Trial Conference is to help the parties narrow the issues in their case prior to the scheduling of a trial and if possible settle the case.At Kelsey & Trask, P.C. we believe that every case can be settled, and it is always our primary goal to settle your case. Since the majority of cases settle at the Pre-Trial Conference, this is an important turning point in your case. Upon the scheduling of the Pre-Trial Conference, the Court requires that the parties hold an in person Settlement Conference at least one week prior to the Conference, and that if the parties are unable to reach an agreement at the Settlement Conference, then both parties shall file a Pre-Trial Memorandum informing the Court of what issues they agree upon, and what issues they disagree upon. This is a lengthy document that your attorney will prepare for you, and which will address numerous issues including informing the Judge what witnesses you will call at trial, and what evidence you will present.
Prior to the Pre-Trial Conference, the Judge will review the Financial Statements of both parties, the Pre-Trial Memorandum of both parties and will sometimes allow oral argument on particular issues. The judge then provides feedback to the parties regarding how the court might decide their case if, after hearing all of the evidence at a trial, the Judge finds the facts of your case to be the same as those facts presented in the Pre-Trial Memoranda. Given this feedback from the Judge, we are often able to settle formerly disputed issues.
In many cases you will be asked to make a "business decision" and take into account not just the facts surrounding your case, but also the value of compromise in both ending litigation and in avoiding the cost of a trial. A trial will be very expensive for both of you and can often cost more than $25,000.00 per party. That is why it is so important to be well-prepared for the Pre-Trial Conference and to listen carefully to the Judge at the Pre-Trial Conference.
What happens at a Trial?
At a trial of your case, both parties will have the opportunity to present evidence and testimony to the Judge. Because the Judge is limited to hearing only the evidence that is admissible under the Rules of evidence, there may be facts about your case that the Judge is not able to hear about. At the conclusion of hearing admissible evidence, your attorney will submit proposed Findings of Fact and a proposed Judgment to the Judge, which will include all of the decisions that you want the Judge to make based on the evidence presented.After reviewing both parties' proposals and the evidence, the Court will issue a Judgment and it will become effective immediately.
Once a Judgment is made, either party may appeal the judge's decision, but there are very specific deadlines about when a Notice of Appeal must be filed. Most attorneys' standard Retainer Agreement does not include representation for an appeal. If you want to appeal a decision in your case we will have to work out a new Agreement. Due to the discretion given to trial Judges in deciding what a fair and reasonable result Judgment is, it is very difficult to appeal a Judgment, once made.
What if I was married but my child is not my Husband's?
What if the mother was married to someone else when she had my child?
In Massachusetts there is a presumption that a child born of a woman who is married or was married in the last three hundred days before the child's birth is the child of that woman's husband. This is a legal presumption and can be rebutted by evidence.If you are filing a Paternity Complaint and the mother was married at the time of the child's birth or in the last three hundred days before the child's birth, then the Court requires that you use a different form and include the Husband as a Defendant in the action. Usually a DNA test will be performed to confirm that the Husband is not the Father and then the action can proceed similar to any other Paternity action.
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