Mediation and Collaborative Law in cases involving Unmarried Parents

This article focuses on unmarried parents residing in Massachusetts. It is not meant to provide legal advice, but for informational purposes only.

In cases involving children of unmarried parents, it is better for the parents and children to use alternative dispute resolution such as mediation or collaborative law processes, than costly of litigation to resolve matters. Children who are born to unmarried parents should be treated the same as if they were born to parents who are married. These children are entitled to the same rights and protections of the law as other children. See M.G.L. Chapter 209C, Section 1.

Using alternative dispute resolution processes like mediation or collaborative law could allow the parents to maintain a positive relationship between themselves.  Using mediation or collaborative law processes to resolve issues involving unmarried parents are private as the only people hearing the issues during this process would be the mediator or the collaborative team, consisting of each parents lawyer, a coach or the financial professional.

Has Paternity Been Established?

Paternity could be established in the hospital after the child is born when both parents sign the birth certificate for the child. If that was not done and there is any question about who is the father, the parents should consider genetic marker testing to determine paternity. Genetic marker testing could be pursued using a Buccal Swab test or blood test. The Baccal Swab test involves taking cells from inside the mouth with the swip of a Qtip. Whether a Baccal Swab test or a blood test is used, they are sent to the lab for testing to be done. A private lab could be used. (Department of Revenue, Child Enforcement Division in Massachusetts does provide genetic marker testing, but a suit will need to be filed in the court.)

The genetic marker test will show that a putative father is “not excluded” via a high statistical probability to determine if he is the biological father. Once the genetic marker test results come back, if the gentleman is the father, then the parties may want to sign a Voluntary Acknowledgment of Parentage. This document must be read, completed in full, signed in front of a Notary Public and the back page must be initialed. Then the parents could begin to try to resolve issues involving the child via  mediation or the collaborative law process.  Paternity could be decided in court.  However, the goal in using mediation or the collaborative law process is to avoid litigation and work all matters out.

What Needs to be Considered in cases involving Unmarried Parents?

Issues in cases involving unmarried parents are determining custody/parenting time, child support, life insurance, health insurance and other matters.

Is the Word “Custody” Still Used?

The paternity statute in Massachusetts still refers to “custody” not parenting time.

In Massachusetts, “the mother shall have custody of a child born out of wedlock,”  if there is no father named on the birth certificate, no court action where a gentleman has been adjudicated the father and no Voluntary Acknowledgment of Paternity signed by the parents.
See M.G.L. Chapter 209C, Section 10 (b)

However, either parent could seek to have custody or parenting time and these issues could be resolved using alternative dispute resolution such as mediation or the collaborative law process.  If these issues are not resolved in mediation or using the collaborative law process and the parents have to go to court,  the judge could award custody to either parent or another suitable person depending on the facts of the case. See M.G.L. Chapter 209C, Section 10 (a). If a parent seeks “custody” then the court needs to look at where the child lived the last six months and which parent has or parents have a personal and parental relationship with the child before an action is filed in court. See M.G.L. Chapter 209C, Section 10(a)

What is Shared Legal Custody in Massachusetts?

We need to look to the divorce statute for a definition of shared legal custody:

“Shared legal custody” is continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotion, moral and religious development.” under the divorce statute M.G.L. Chapter 208, Section 31. In Massachusetts, children who are born to parents who are married and their parents divorce, there is a presumption of shared legal custody. See M.G.L. Chapter 208, Section 31.

However, children who are born to parents who are unmarried and if the parents do not have a relationship before they separate, there is no presumption of shared legal custody. Parents who are unmarried would need to have the ability to communicate and plan with each other for the child’s best interest and have to have successfully exercised joint responsibility for the child before any action is filed in court to have shared legal custody. See M.G.L. Chapter 209C, Section 10 (a).

What is in the Child’s Best Interest for Parenting time and Child Support?

Parenting Time of Children for Unmarried Parents
As a mediator or collaborative lawyer, who are working with unmarried parents, one should call the time spent with the child “parenting time” and not argue over “custody” of the child. To determine parenting time, the mediator or collaborative lawyer has to look at what is in the best interest of the child to determine parenting time.   A child’s age, special needs, interests and needs are relevant for scheduling parenting time. A schedule for an infant is going to be looked at differently than parenting time than a school aged child. The child’s school, activities and educational, physical or emotional special needs need to be looked. Both parents schedules and available time needs to be considered. Each parent will need to examine how they plan to address the child’s special needs, if any.

The adults should be making decisions for the children, whether decisions are made using alternative dispute resolution, such as mediation or collaborative law as processes for resolving issues involving unmarried parents.  If there is a teenager involved, they may be consulted for parenting time and their future planning.  Both parents should be involved in raising the child as in the long run, it often is in the best interest of the child if both parents can get along and communicate effectively.

Child Support in Cases Involving Unmarried Parents

The amount of child support payments should not be the only focus for parenting time. One needs to determine the amount of child support based on the parties gross incomes, the costs for day care ,  medical insurance, dental insurance and vision insurance and prior child support obligations.

See August 1, 2013 Massachusetts Child Support Guidelines: and  the Massachusetts Child Support Guideline Worksheet:

Options for parenting time are: parents can share parenting time and financial support approximately equally, one third/two thirds, greater than one-third/less than 50% or more than two thirds/less then one third.

What parenting time is determined during the mediation or collaborative law process and then the child support should be considered based on that time.  Money, i.e. the amount of child support payments, should not drive what is in the child’s best interest for parenting time.

In a case involving unmarried parents there is no way to maximize the amount of money available by calling it unallocated alimony and child support to obtain a tax benefit as there is no alimony in matters involving unmarried parents. Child support payments must be called “child support” in matters involving unmarried parents.

Other Financial Issues for Cases involving Unmarried Parents

Children of unmarried parents need to be covered under one of the parents medical insurance or another type of medical insurance through the state. If dental and vision insurance is available through one of the parent’s employer provided insurance, a child should also be covered under it. Uninsured medical expenses should be shared between the parties. If there are extraordinary expenses, then the parents should decide how they should be shared before the issue comes up, such as equally, based on a proportional share of the incomes or if one of the parties with higher income will pay the costs or some other reasonable division of these costs.

Life insurance should be provided by both unmarried parents for their child until the child is emancipated. Term life insurance policies are not expensive and are often provided by employers. If not, an inexpensive policy should be obtained and paid for until the child is emancipated, if it is financially feasible.

Whether a child born to unmarried parents should attend post high school education at college or trade school should be considered and talked about in the junior year of high school.  However, when planning for the future, payment of the costs for tuition and fees for the child should be considered, if is at all financially feasible.

Other Issues
If there are other siblings involved, it should be decided how the children will visit with each other. Looking at a history on how the children have spent time beforehand is important. Also, the child’s schedule, special needs and time available for transporting should be arranged on a consistent schedule.

It should be discussed whether there are special circumstances such as other caretakers involved that are interested and involved with the child. It is important for the children to have involvement from family, if the family is involved in a positive way.

Children should not be exposed to domestic violence in any way, whether it be verbal, physical or other types of abuse. Cases involving domestic violence may not be able to be mediated or parents may be able to participate in a collaborative law process.

In unusual situations, one of the unmarried parents may consider moving out of state or to the other part of Massachusetts. If so, it needs to be considered: what has been the involvement of each parent, who has custody or what the parenting time with the child has been to date and what support systems are there in both locations. In addition, the reasons the parent wants to relocate such as job opportunities, family, etc. should be discussed. Also, what effect will the move have on the children for their school and medical care is important.

It is important to have the court approve an Agreement made by unmarried parents involving the child or children.  The reason is to provide an enforcement vehicle.  If either parent violates an Agreement, then either parent could go to court to enforce it.

Mediation and collaborative law processes are better ways to resolve matters involving children of unmarried parents.  Using these types of alternative dispute resolution are beneficial as they are private and could maintain positive relationships for unmarried parents.