Helping Families Negotiate Change

Helping Families Negotiate Change - in Divorce and Family Law

Helping Families Negotiate Change - in Divorce and Family LawHelping Families Negotiate Change - in Divorce and Family LawHelping Families Negotiate Change - in Divorce and Family Law

FAMILY LAW AND DIVORCE TOPICS - Unmarried Parents & Custody - Divorce Process - International Child Abduction -




Did you know that if you are the parent of a child born out of wedlock and you do not have either a legal written custody agreement filed with the

Massachusetts Probate Court or an order/judgment from the court granting you custody, you do not have custody of your child? This is true even if you have filed a Voluntary Acknowledgment of Parentage Form, you are listed as  

a parent on the birth certificate, the child has your last name or even if you

are living with the child or are the sole or primary caretaker for the child.

What this means is that the birth parent has sole physical and legal custody under Massachusetts law unless/until you are granted custody by the Court or you and the mother come to an agreement and file it with the Court. This can cause serious problems if your relationship with the birth parent ends, specifically if that parent decides to move away with the child, either

interstate or out of the country. 

This also means that you have no legal right to make decisions about the child's medical care, education and religious upbringing. You still have a  legal obligation to provide financial support/child support for your child. 

Children Born Out of Wedlock, Massachusetts Laws (M.G.L. chapter 209C) 


In order to obtain a divorce in the Commonwealth of Massachusetts two spouses may either file a joint petition for divorce with the  Probate and Family Court under M.G.L. c. 208, section 1(a) if they are able to come to an agreement regarding all issues, or one spouse may file a  complaint for

divorce under M.G.L. c. 208, section 1(b) if the parties are unable to come to an  agreement. One spouse (the plaintiff) files a complaint for divorce which is served upon the other party (the defendant) along with a summons.

Service of the complaint may either be done by sheriff or the defendant can accept the papers by signing voluntarily. The defendant answers the

complaint and then the case is in the pretrial period which is the time prior to trial. 

The parties may come to an agreement any time during the pretrial period, even during an actual trial on the issues. If the parties come to an agreement they may file it with the court and do not have to proceed any further with litigation. During the pretrial period the parties may either come to an agreement on temporary orders or have the court hear motions for temporary orders in court hearings, requesting that the court make decisions regarding various issues for them. Temporary orders outline how the parties will act during the pretrial period on such issues as custody and visitation, child support, alimony, who is going to live in the marital home, how bills will be paid, etc.

Each party has the right to conduct discovery during  the pretrial period.

Discovery is a way to obtain information from and about the other spouse in the form of written answers to questions, document production and sworn testimony at deposition.  

If  there  is  an issue of custody in the case, either party may request that the

court appoint a Guardian Ad Litem  to investigate and produce a recommendation of what would be best for the child in regard to custody and parenting time. or either party may file a Motion for an Attorney for the child/ren to represent their best interests before the Court.

If the parties are unable to reach an agreement there will eventually be a trial on the issues where evidence is submitted to the Court through oral testimony and documentary evidence.




Attorney Berrien successfully litigated a custody case involving an

international kidnapping of a child from Massachusetts to the Dominican Republic. Attorney Berrien represented the father. The Hampshire County

Probate and Family Court ruled after trial on the matter that the father have sole physical and legal custody of the child and that the child be returned to Massachusetts. The mother, to this date, has not returned the child and  is currently in violation of a Massachusetts Judgment and was found in Contempt of Court.The father filed a petition for return of the child under the Hague Convention on the Civil Aspects of International Child Abduction. It took four years for a decision to be issued and in 2014 the Dominican Republic's highest Court ruled against father, denying the child's return to the United States. The ruling was that it was in the child's best interest to remain in the Dominican Republic due to the length of time she had already spent there. 

This custody case is similar to the Sean Goldman international kidnapping

case where a young boy was taken by his mother from the United States to

Brazil away from his father. That case garnered much international attention

and the child and his father were finally reunited over five years later with the help of Congressional  Representatives, then Secretary of State Hillary Clinton and public outcry and support for the father.

The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that many countries worldwide, including the United States, have joined. The Convention aims to protect children from the harmful effects of international abduction by a parent by encouraging the prompt return of abducted children to their country of habitual residence, and to organize or secure the effective rights of access to a child. The Convention encourages any litigation about custody issues to be done in a Court where the child habitually resided.

You should consider using the Hague Convention to try to get your child

back even if you already have a custody Order or Judgment from a U.S. state because: U.S. court orders may not be recognized  in other countries; Each country is a sovereign nation. Sovereign nations cannot interfere with

each other's legal systems, judiciaries, or law enforcement; 

To use the Hague Convention to try to get your child back, you must show

the following:  1)Your child was a habitual resident in a Convention country, and was wrongfully removed to or retained in another Convention country; 2)The removal or retention of your child is considered wrongful if it was in violation of your custodial rights, and you were exercising those rights at the time of the removal or retention, or you would have been exercising them but for the removal or retention; 3)The Convention must have been in  force between the two countries when the wrongful removal or retention occurred, the dates are different for every country); 4)The child is under the age of 16.   

To find out more about filing a Hague application and how to try to get your  child back from another Hague country go to the following website: (Information on International Kidnapping Cases and Hague Convention)  

Divorce & Family Law Additional Resources


The author of this Web site does not control or maintain the material presented  by other persons on their web sites. The inclusion of any link on this web site does not imply any association or

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American Society for Reproductive Medicine
(Ethics Committee guidelines)

Association of Family and Concilliation Courts 

(MA Child Support Guidelines and Worksheet)

Children Born Out of Wedlock, Massachusetts Laws
(M.G.L. chapter 209C)

For the Children
(Class for Never Married Parents)

Franklin County Bar Assocation

(Gay and Lesbian Advocates and Defenders)

Hampden County Bar Association

Hampshire County Bar Association

Hampshire County Parents and Children in Transition
(PACT Class for Divorcing Parents) 

(Hampshire County Probate and Family Court)

Massachusetts Bar Association

Massachusetts Council of Family Mediation 

(MA Probate and Family Court Forms)

Safe Passage
(Northampton, MA domestic violence organization)

United States Department of State Office of Children's Issues
(Information on International Kidnapping Cases and Hague Convention)

 DISCLAIMER:   The material on this website is provided for informational purposes only and may be considered advertising pursuant to the rules of the Massachusetts Supreme Judicial Court. The transmission of this information, and any response, does not constitute legal advice & does not create or imply an attorney-client relationship. Readers should not act or rely on any information provided herein without consulting legal counsel.