parents who are not married to each other, men don’t have equal rights unless they take certain steps to protect those rights. Ideally, men and women have equal rights under the law. However, science does not afford the same level of equality. When a child is born, there is no question of the identity of the mother of the child. Therefore, the law recognizes the mother and her parental rights immediately upon birth. Biology does not make identification of the father so easy. A man may be present at birth, have his name on his birth certificate, and support the child. However, these actions are not sufficient to instill the man with parental rights. An alleged father of a nonmarital child may become a legal parent in one of two ways only: through an adjudication by a judge, or by filing a voluntary acknowledgment of paternity executed by both parents. The man’s name on the birth certificate is not sufficient.
The recent case of SMITH v. McDONALD, SJC-10670 (Mass. 12-14-2010) explained that prior to a legal determination of paternity, the child's mother is vested with sole physical and legal custody, and that custody arrangement continues even after paternity is established until modified by a court. So if no court action has been filed, the mother has sole custody of the child even if the parties have executed a voluntary acknowledgement of paternity.
A man who wants to protect his parental rights must have a judge determine that he is the father and grant him joint legal or joint legal and physical custody. Even if the parties are living together, when a child is born of a non marital relationship, the parties should execute a voluntary acknowledgment of paternity and go to Probate Court and have the court grant joint custody to the father and mother. This will protect the child’s rights as well as the father’s rights.