USA – MASSACHUSETTS Trends and Developments Contributed by: Mary H. Schmidt, Rachel A. Deering, Hannah R. Zukoff and Mariah G. Tappan, Verrill Dana, LLP
Although no formal database tracks these figures, many family law practitioners observed a marked increase in the number of families seeking to formalise their legal parentage following the enactment of the MPA and, shortly thereafter, the inauguration of Presi - dent Donald Trump. While the reasons are undoubt - edly varied, many families appeared motivated by a desire to secure legal recognition of their paren - tal rights amid a rapidly changing legal and political landscape. Under the current presidential administra - tion, the federal recognition of LGBTQ+ families and families formed through assisted reproduction is more unpredictable and unstable than it has been since the Supreme Court’s 2015 ruling in Obergefell v Hodges . As a result, many families are seeking every available legal protection, including formal recognition of each intended parent. By securing legal parentage, a par - ent is provided with many rights state-wise, such as: • the right and responsibility to make legal decisions for their child, including medical decisions in the event of an emergency; • the right to physical custody; • the protection against the removal of their child from Massachusetts; and • ensuring a child can receive insurance benefits or inheritance rights. The analysis of whether a parent can move out of Mas - sachusetts without the consent of both parents hinges entirely on whether each parent is a legal parent. With the MPA, many more families and parents are able to obtain the protection provided by law against the unilateral relocation of a child from Massachusetts. Imagine a circumstance where a same-sex couple grew their family through artificial insemination. Prior to the MPA, the parent who gave birth to the child was automatically considered the legal parent of the child and granted all the rights and responsibilities that came with this legal parentage. While the family was an intact family, the non-biological parent had always been a present and active parent in the child’s life, although they never went through the formal process of adopting their child and, thus, had never legally been declared a parent. Now, the parties have sepa - rated. As the biological parent is the only “legal” par - ent of the child, the biological parent could unilater -
ally remove the child from Massachusetts without the permission of the non-biological parent or the court. Although the non-biological parent could ultimately file the relevant pleadings after the fact to try to return the child to Massachusetts, the situation has become much more complicated and expensive. The MPA has streamlined this process, to ensure both intended par - ents have the same rights as any other parent in Mas - sachusetts. Shift from primary physical custody to shared parenting Although the MPA has allowed more parents to secure legal parentage and obtain additional parental rights, Massachusetts has also seen a shift in the custodi - al arrangements being ordered by the Probate and Family Courts. Under General Laws of Massachu - setts (M.G.L.) Chapter (Ch.) 208, Section 31, custody arrangements may include sole or shared legal or physical custody. M.G.L. Ch. 208, Section 31 defines sole or primary physical custody as a child residing with and being under the supervision of one parent, while the other parent is subject to reasonable visita - tion with the child. M.G.L. Ch. 208, Section 31 defines shared physical custody as a child having periods or residing with and being under the supervision of each parent, with the child having frequent and continued contact with both parents. It is well settled that, absent an agreement between the parents, the court may exercise its substantial discretion in determining physical custody and fash - ioning a parenting plan that is in the best interests of the child. However, in making their determination, the court is guided by both statutes and extensive case law. M.G.L. Ch. 208, Section 31 provides that, in the absence of misconduct, the court must hold the rights of parents equally when making an order relative to the custody of the child and determine custody based on the happiness and welfare of the child at issue. Massachusetts case law provides substantial guid - ance as to the appropriate factors to consider when determining a custodial arrangement, including: • what parent has been the primary caretaker of the child; • whom does the child have the strongest bond with;
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