Who has custody if there is no custody order in place?
If the parents are married and have not gotten a custody order, both spouses automatically share legal custody of the child until a judge says otherwise.1 This means that both you and your spouse have the right to make major decisions about your child’s life.
If the parents were never married, and there is no custody order in place, the mother has sole legal and sole physical custody of the child unless a judge orders otherwise. Unlike most other states, this is true even if paternity (legal fatherhood) has been established by the father.
Paternity can be established by signing and filing a voluntary acknowledgment (usually done at the hospital at birth) or by a judge’s order after either parent files a paternity petition in court. However, as mentioned above, once paternity is established, the mother is still considered to have custody, unless and until the father files for, and receives, shared or sole custody in court.2
However, if you are considering moving out of state with your child, and the other parent disagrees, please talk to an attorney who specializes in custody to figure out whether or not you need the court’s permission first. Go to MA Finding a Lawyer for legal referrals.
1 M.G.L. 208 § 31
2 M.G.L. 209C § 10(b)