Legal Information: Massachusetts


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October 24, 2018

Who has custody if there is no custody order in place?

It depends. 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 you were never married, and there is no custody order in place, the mother has custody of the child whether paternity (legal fatherhood) has or has not 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.   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 can do so without the court's permission.  Go to MA Finding a Lawyer for legal referrals.

1 M.G.L.A. 208 § 31
2 M.G.L.A. 209C § 10(b)