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Unmarried Parents Are Still Parents

By Julie A. Dialessi-Lafley, Esq.


More and more frequently, people are opting not to get married, but are still desirous of having children and becoming parents, whether or not they are in a committed relationship with their partner. The decision to have a child or children creates a permanent connection to the other parent, regardless of the marital status of the parents.

Unmarried parents have various types of relationships. We see unmarried parents that live together, some have separate households but spend time together, and many are not together any longer and may have new relationships. The unmarried parents need to navigate how to bring up their child together while being apart. This requires that both parents understand that the other parent has a right to be in the life of the child. The law supports the idea that fathers and mothers both have the right to parent their children, even if unmarried.

Emotions of the parties often cloud their judgment when considering the role of the other parent in the life of the child. Did the parties break up? Has one person (or both) moved on? Was the relationship short-term without commitment and lacking a foundation between the parents? The history of the relationship is certainly impactful on the parent; however, first and foremost, parents need to be reminded that fathers need to be responsible, present, and cooperative with the mothers of their children, and mothers need to encourage, support, and accept the relationship a child has with their father.


The Child’s Best Interest

The standard in the Commonwealth of Massachusetts to determine a parenting plan and custodial relationship with children and parents starts with a best-interest standard. The presumption is that both parents should play a role in the life of a child unless it is not in the child’s best interest. It is often difficult for a parent to separate their feelings about the other parent when trying to determine the parenting relationship. It is clear, however, that simply because someone is not a good partner does not mean they should not be in the life of their child.

Julie A. Dialessi-Lafley

Julie A. Dialessi-Lafley

“First and foremost, parents need to be reminded that fathers need to be responsible, present, and cooperative with the mothers of their children, and mothers need to encourage, support, and accept the relationship a child has with their father.”

When parents are not married, the law provides that, absent an agreement or court order otherwise, the mother has sole legal and physical custody of the child. This is rebuttable and is not intended to prevent fathers from having equal footing in the lives of their children.

More times than not, with good communication, the parents can develop a parenting plan that provides for both parents to be involved in the legal decision making for the major medical, educational, and religious decisions of the child. This is what is known as legal custody. Parents can agree to share legal custody and make these major decisions together.

If they are unable to agree, a court may order shared legal custody if a history of the parents being able to work together to make these decisions can be demonstrated. Even if the court does not order shared legal custody, both parents still have the right by statute to have access to the medical and educational information and records of the child. It does not mean that a parent is excluded from knowing these things about their child.

There are always exceptions that need to be considered, such as domestic violence or history of restraining orders, which impact the ability of the court to grant certain relief if the parents are unable to agree.

It is worth reiterating that, if the parents are able to put their feelings about the relationship with the other parent aside and focus on the child, they can in most circumstances — if certainly not every one — develop a parenting relationship where both parents can be involved in the child’s life.

Parenting plans that deal with the actual parenting time the parties spend with the child should include the normal parenting plan, a holiday schedule, and vacation schedule, so that there is a clear plan for each parent’s time with the child. The location of pick-up and drop-off of the child, the specific time for exchange of the child, and who may transport the child are critically important in developing the parenting plan. Being clear and specific with these terms may create a plan that will reduce conflict between the parties when they may not both have the same philosophy about co-parenting with the other parent.

Parenting plans should also deal with child support, health insurance, uninsured medical expenses, extracurricular activities and payment of those expenses, education of the child, and the primary residence of the child, at a minimum.

The parenting plan also can include terms around communication. Communication is key, and throughout the child’s life, there are going to be countless times when the parents will need to discuss or exchange information with the other parent, make a decision together, or attend parent-teacher conferences, activities, or countless different life events.

A method of communication can be defined, such as through text, a parenting application which tracks communication, or through parent meetings on a scheduled basis. Regardless of the method, it is often key to successful co-parenting for there to be set rules as to where, when, and what the parents talk about.

By agreement, parents can include terms around phone calls or video calls with the child, as well as any other contact they want to have in between their parenting time. Language that fosters a positive and supportive parenting relationship between the child and the other parent can be included by agreement of the parents to prevent disparaging, disrespectful discussions.


The Court as a Last Resort

If the parents are unable to agree on how to develop a parenting plan, the court ultimately has the jurisdiction to make the decision. The court will do its job, but most every judge will encourage the parents to come to an agreement if they are able to do so, as they know their child better than anyone.

If the court is ultimately the decision maker, the court will consider the age and developmental stage of the child, the individual needs of the child, the history of the relationship between the parents, how close the parents live to each other, the parents’ work schedule, and problems such as substance abuse, domestic violence, child abuse, or a criminal record.

Naturally, this is not the exhaustive list, and the topics of this article are general. When navigating these issues, you should seek advice of an attorney in order to understand all the issues that need to be addressed and understand your rights as a parent.


Julie A. Dialessi-Lafley is a shareholder with the law firm Bacon Wilson, P.C. and chairs the firm’s Family Law department. She is a certified family law mediator, a member of the Springfield Women’s Leadership Council, a member of the United Way of Pioneer Valley board of directors, and is licensed to practice law in both Massachusetts and Connecticut; (413) 781-0560; [email protected]