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Massachusetts Paternity Law

Paternity – General – Massachusetts

Note:  This summary is not intended to be an all inclusive discussion of the law applicable to an action to establish Paternity in the State of Massachusetts, but does include basic and other provisions.

Statutes:

General Laws of Massachusetts
PART II.  REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS.
CHAPTER 209C. CHILDREN BORN OUT OF WEDLOCK.

[No last-revised dates available. Statutes current through Jan. 2009.]

Declaration of purpose; definition; responsibility for support of children born out of wedlock.
Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children. It is the purpose of this chapter to establish a means for such children either to be acknowledged by their parents voluntarily or, on complaint by one or the other of their parents or such other person or agency as is authorized to file a complaint by section five, to have an acknowledgment or adjudication of their paternity, to have an order for their support and to have a declaration relative to their custody or visitation rights ordered by a court of competent jurisdiction. For the purpose of this chapter, the term “”child born out of wedlock” shall refer to any child born to a man and woman who are not married to each other and shall include a child who was conceived and born to parents who are not married to each other but who subsequently intermarry and whose paternity has not been acknowledged by word or deed or whose paternity has not been adjudicated by a court of competent jurisdiction; and a child born to parents who are not married to each other whose paternity has been adjudicated by a court of competent jurisdiction, including an adjudication in a proceeding pursuant to this chapter or prior law. Every person is responsible for the support of his child born out of wedlock from its birth up to the age of eighteen, or, where such child is domiciled in the home of a parent and principally dependent upon said parent for maintenance, to age twenty-one. Each person charged with support under this section shall be required to furnish support according to his financial ability and earning capacity pursuant to the provisions of this chapter.
Part II, Chapter 209C: Section 1.

Paternity; acknowledgment or adjudication; statistical information of parties; transmission to registrar.
Paternity may be established by filing with the court, the clerk of the city or town where the child was born or the registrar of vital records and statistics an acknowledgment of parentage executed by both parents pursuant to section 11 or pursuant to an action to establish paternity filed pursuant to this chapter; provided, however, that if a judgment or finding of paternity has been issued by a court or administrative agency of competent jurisdiction under the law of another state or foreign country or if both parents executed a voluntary acknowledgment of parentage in accordance with the law of another state or foreign country, such judgment, finding or voluntary acknowledgment shall be accorded full faith and credit and paternity shall not be relitigated. Upon receipt of an acknowledgment of paternity, the clerk of such city or town shall forward the original acknowledgment to said registrar as provided in chapter 46. Upon receipt of an acknowledgment of parentage or upon an adjudication of paternity under this chapter, the court shall transmit to the registrar of vital records and statistics a certified copy of the acknowledgment or order establishing paternity, together with such statistical information as said registrar may require, upon such form and in such format as designated by said registrar, which shall include the name, residence, date of birth, place of birth and social security number of each of the parties and the child, the sex of the child, and such additional information as the commissioner of public health deems useful for statistical and research purposes. Actions to establish support obligations or for custody or visitation rights may also be filed pursuant to this chapter.
Part II, Chapter 209C: Section 2.

Paternity and support actions; jurisdiction; enforcement of prior orders or judgments; juvenile court commitment proceedings; parents convicted of first degree murder.

(a) The district, Boston municipal and the probate and family court departments of the trial court shall have concurrent jurisdiction over complaints to establish paternity or support and the registration of voluntary acknowledgments of parentage; provided, however, that the district and Boston municipal court departments shall have no jurisdiction of custody or visitation matters under this chapter. Complaints to establish paternity or support or for voluntary acknowledgments of parentage which also include a request for an order relative to custody or visitation shall be filed only in the probate and family court department. No court shall make an order providing visitation rights to any parent who has been convicted of murder in the first degree of the other parent of the child who is the subject of the order, unless such child is of suitable age to signify his assent and assents to such order; provided, further, that until such order is issued, no person shall visit, with the child present, a parent who has been convicted of murder in the first degree of the other parent of the child without the consent of the child’s custodian or legal guardian.

(b) Any party to an action for paternity or support which is pending or was previously adjudicated by the district or Boston municipal court departments who seeks an order relative to custody or visitation may, after the adjudication or voluntary acknowledgment of paternity and entry of an order or judgment for support, file an action in the probate and family court department in the county where the child resides to determine custody or visitation. The filing of the action in the probate and family court shall act to transfer the case from the district court or the Boston municipal court department to the probate and family court department. The register of probate shall make entry in the docket that the case shall thereafter be heard only in the probate and family court department. The party seeking transfer shall notify the parties, the district court or the Boston municipal court and, if applicable, the IV-D agency as set forth in chapter 119A that the action has been transferred to the probate and family court department. The clerk magistrate of the district court or the Boston municipal court shall make entry in the docket of such transfer.

(c) The juvenile court department shall have concurrent jurisdiction to adjudicate paternity and support and to accept registration of voluntary acknowledgments of parentage under this chapter, provided that actions brought under this chapter are joined or consolidated with actions brought under section twenty-four of chapter one hundred and nineteen and, provided further, that the action under section twenty-four of chapter one hundred and nineteen is initiated before the filing of a complaint under this chapter.

(d) Any action pursuant to this chapter that is pending or was previously adjudicated in the district court or Boston municipal court departments may be transferred by any party or by the IV-D agency as set forth in chapter 119A to the probate and family court department in the county where the child resides or, if the child does not reside in the commonwealth and a court of the commonwealth has jurisdiction under chapter 209D, in the county where one of the parents resides. An action shall be transferred upon the filing of the following documents with the probate and family court:

(1) a copy of the complaint;

(2) a copy of the order of the district court or Boston municipal court, if any;

(3) a copy of the findings of the court, if any;

(4) a copy of the financial statements submitted by the parties, if any;

(5) a copy of the worksheet used to calculate the amount of the child support order pursuant to the child support guidelines, if any; and

(6) a copy of the docket maintained by the district court or the Boston municipal court, if any.

Once transferred, the order of the district court or the Boston municipal court shall have the same force and effect, and shall be subject to the same procedures and defenses as an order of the probate and family court and may be enforced or modified in the same manner available to enforce or modify any judgment or order of the probate and family court. Transfer of an order pursuant to this section shall not limit the use of any enforcement remedy, whether judicial or administrative, that may be available and the probate and family court shall preserve all arrears that have accrued pursuant to the order of the district or Boston municipal court departments.

(e) An order or judgment for support entered in the juvenile court department shall remain in full force and effect and shall be enforced in the division of the juvenile court department in which the original order or judgment of support was entered during the pendency of an action pursuant to section twenty-four of chapter one hundred and nineteen. Six months after the dismissal or final order of commitment pursuant to section twenty-four of chapter one hundred and nineteen, the order or judgment of support shall expire. At the time of such dismissal or final order of commitment, the clerk-magistrate shall notify the parties and the IV-D agency, as set forth in chapter one hundred and nineteen A, of the date of expiration of the support order or judgment. If, before the expiration of the order or judgment of support, any of the parties or said IV-D agency files an action for support in the Boston municipal court department or the appropriate division of the district or probate and family court departments, the prior order or judgment shall be transferred to that court department and shall remain in full force and effect and shall be enforced and modified in said court department.
Part II, Chapter 209C: Section 3.

Venue; service.
Actions under this chapter to establish paternity, support, custody or visitation of a child shall be filed in the judicial district or county in which the child and one of the parents lives. If neither of the parents lives in the same judicial district or county as the child then the complaint shall be filed in the judicial district or county where the child lives. The fact that the child was conceived, was born, or lives outside the commonwealth does not bar a proceeding to establish paternity pursuant to this chapter. Service of the complaint shall be made in accordance with applicable rules of court. In addition to those otherwise authorized to serve civil process, any officer authorized under the laws of the commonwealth to serve criminal process may serve any process under this chapter.
Part II, Chapter 209C: Section 4.

Persons entitled to maintain actions or execute voluntary acknowledgment of parentage; parties.

(a)Complaints under this chapter to establish paternity, support, visitation or custody of a child may be commenced by the mother, whether a minor or not; by a person presumed to be or alleging himself to be the father, whether a minor or not; by the child, whether a minor or not; by the child’s guardian, next of kin, or other person standing in a parental relation to the child; by the parent or personal representative of the mother if the mother has died or has abandoned the child; by the parent or personal representative of the father if the father has died; by the authorized agent of the department of children and families or any agency licensed under chapter 15D provided that the child is in their custody; or, if the child is or was a recipient of any type of public assistance, by the IV-D agency as set forth in chapter 119A on behalf of the department of transitional assistance, the department of children and families, the division of medical assistance or any other public assistance program of the commonwealth; provided, however, that if the mother of the child was or is married and the child’s birth occurs during the marriage or within three hundred days of its termination by death, annulment or divorce, complaints to establish paternity under this chapter may not be filed by a person presumed to be or alleging himself to be the father unless he is or was the mother’s husband at the time of the child’s birth or conception.

(b) Voluntary acknowledgments of parentage may be executed by the mother and the putative father, whether either or both is a minor, and may be registered pursuant to section 11 only if the signatures of the mother and the father are notarized. If the mother of the child was or is married and the child’s birth occurs during the marriage or within 300 days of its termination by divorce, a voluntary acknowledgment of parentage naming the putative father may be executed by the mother and the putative father only if the mother and the person who was the spouse of the mother at the time of the child’s birth or conception sign an affidavit denying that the spouse is the father of the child; provided, however, that where the marriage has been terminated by annulment or by the death of either spouse, paternity of the putative father may only be established by filing a complaint to establish paternity as provided in this chapter. A mother and a putative father signing a voluntary acknowledgment of parentage at the hospital or thereafter at the office of the city or town clerk as part of the birth registration process pursuant to section 3C of chapter 46, with the department of transitional assistance, with the IV-D agency set forth in chapter 119A, with any agency designated by the federal Secretary of Health and Human Services or with any official of a court shall receive notice orally, or through the use of video or audio equipment, and in writing of alternatives to signing the acknowledgment, including the availability of genetic marker testing, as well as the benefits and responsibilities with respect to child support, custody and visitation that may arise from signing the acknowledgment, and subsequently filing the acknowledgment with the court or with the registrar of vital records and statistics as provided in this chapter.

(c) Any agency or person living with this child who is actually furnishing support to the child or, if the child who is the subject of an action under this chapter is a recipient of public assistance, the department of transitional assistance, shall be made a party to any action for paternity or support under this chapter.

(d) The IV-D agency as set forth in chapter 119A on behalf of the department of transitional assistance, the department of children and families, the division of medical assistance or any other public assistance program may not file complaints solely for custody or visitation, but shall be permitted to file actions for paternity or support; provided, however, that said IV-D agency shall be permitted to maintain an action for paternity or support even if issues related to custody or visitation are raised.

(e) In actions under this chapter relative to custody or visitation, the child, if the child is fourteen years of age or older, shall be made a party to such action.
Part II, Chapter 209C: Section 5.

Presumption of paternity; mandatory joinder.

(a) In all actions under this chapter a man is presumed to be the father of a child and must be joined as a party if:

(1) he is or has been married to the mother and the child was born during the marriage, or within three hundred days after the marriage was terminated by death, annulment or divorce; or

(2) before the child’s birth, he married or attempted to marry the mother by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child was born during the attempted marriage or within three hundred days after its termination; or

(3) after the child’s birth, he married or attempted to marry the mother by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and

(i) he agreed to support the child under a written voluntary promise, or

(ii) he has engaged in any other conduct which can be construed as an acknowledgment of paternity; or

(4) while the child is under the age of majority, he, jointly with the mother, received the child into their home and openly held out the child as their child; or

(5) he has acknowledged paternity in a parental responsibility claim as provided in section four A of chapter two hundred and ten and the mother, having received actual notice thereof, has failed within a reasonable time, to object thereto; or

(6) with respect to a child born before April 13, 1994, with his consent and the consent of the child’s mother, he is named as the child’s father on the birth certificate as provided in section one of chapter forty-six.

(b) Notwithstanding the provisions of subsection (a), a husband or former husband shall not be required to be joined as a party if non-paternity of the child has previously been adjudicated in a proceeding between the husband and the mother of such child in a court or administrative agency of competent jurisdiction.

(c) Notice to a party joined as herein provided shall be sufficient if the summons is mailed to the last known address by a form of mail requiring a receipt and, if actual notice shall not be made as aforesaid, by publishing a copy of the notice once in each of three successive weeks in a newspaper designated by the court.
Part II, Chapter 209C: Section 6.

Representation in paternity actions; appointment of counsel; burden of proof.
Actions under this chapter shall be civil actions. The IV-D agency, as set forth in chapter one hundred and nineteen A, may appear on behalf of a plaintiff in an action to establish paternity. In actions in which custody or visitation are contested, court may appoint counsel to represent either party whenever the interests of justice require.

The burden of proof in proceedings under this chapter to establish paternity shall be by clear and convincing evidence.
Part II, Chapter 209C: Section 7.

Judgment of paternity; age of father or mother; notice.
Section 8. On complaint to establish paternity, the court shall make a judgment establishing or not establishing paternity which shall be determinative for all purposes. Upon default of the defendant or his failure to personally appear, the court shall make a judgment establishing paternity if a showing is made that the complaint was served in accordance with the applicable rules of court and that the mother or putative father submits that sexual intercourse between the parties occurred during the probable period of conception. For good cause shown, the court may set aside an entry of default and, if a judgment has been entered, may likewise set it aside in accordance with rule 60(b) of the Massachusetts Rules of Domestic Relations Procedure. The age of the person alleged to be the father or mother in any action under this chapter, including a filing of a voluntary acknowledgment of parentage, shall not be a bar to the establishment of paternity or entry of a support order pursuant to section nine. If the child or the mother on behalf of the child is a recipient of public assistance and if the department of transitional assistance, the department of children and families, the division of medical assistance or any other public assistance program has not been made a party as required by section five, the court shall notify the IV-D agency as set forth in chapter 119A of the judgment. If the judgment is at variance with the child’s birth certificate, the court shall order that a new birth certificate be issued under section thirteen of chapter forty-six.
Part II, Chapter 209C: Section 8.

Judgment or order for support; health insurance; financial statement; determination of amount; notice.

(a) If the court finds that a parent is chargeable with the support of a child, the court shall make an order in accordance with subsection (c) requiring a parent to pay weekly or at other fixed periods a sum for and toward the current support and maintenance of such child. The court may make appropriate orders of maintenance, support and education for any child who has attained age eighteen but who has not attained age twenty-one, who is domiciled in the home of a parent and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree. Upon the petition of a party, the court shall also order past support for the period from the birth of the child to the entry of the order, taking into consideration the parents ability to pay under subsection (c) and any support provided by the parent during such period. An order or judgment of support pursuant to this chapter shall be entered notwithstanding the default of the defendant or his failure to appear personally upon a showing that notice was served in accordance with the applicable rules of court. For good cause shown, the court may set aside an entry of default and, if a judgment has been entered, may likewise set it aside in accordance with rule 60(b) of the Massachusetts Rules of Domestic Relations Procedure. When the court makes an order or judgment for maintenance or support of a child, said court shall determine whether the obligor under such order or judgment has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that maybe extended to cover the child for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support judgment or order a requirement that the obligor exercise the option of additional coverage in favor of the child or obtain coverage for the child. An order may be entered requiring a parent chargeable with support to reimburse the mother or the department of transitional assistance or the division of medical assistance or division of health care finance and policy for medical expenses attributable to the child or associated with childbirth or resulting from the pregnancy.

(b) Upon demand by either party, including the IV-D agency, the other party shall be compelled to provide a financial statement, except that the IV-D agency shall not be compelled to provide a financial statement for a recipient of public assistance, and, provided further, if no party makes such a demand, the court may require a financial statement of each party.

(c) In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice for administration and management. There shall be a rebuttable presumption that the amount resulting from application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. In the event that no child support guidelines are in effect, the court shall make such order as is in the best interests of the child, taking into consideration the financial ability and earning capacity of the parents of the child.

(d) It shall not be a defense that the parent from whom support is sought has ceased to have custody or the right to custody of a minor child for whom support is sought, or that the custodial parent is interfering with the other parent’s right of visitation.

(e) If the child on whose behalf an order of support is sought is a recipient of benefits pursuant to chapter 117, 118 or 119 and the department of transitional assistance, the department of children and families, the division of medical assistance or any other public assistance program has not been made a party as required by section 5, the court shall notify the IV-D agency of the order or judgment of support.

(f) In determining the amount to be paid, the court, in addition to applying the standards established by the chief justice for administration and management, shall determine whether the obligor is responsible for the maintenance or support of any other children of the obligor even if a court order for such maintenance or support does not exist. If the court determines that such responsibility does, in fact, exist and that such obligor is fulfilling such responsibility, such court shall take into consideration such responsibility in setting the amount to be paid under the current order for maintenance or support.
Part II, Chapter 209C: Section 9.

Award of custody; criteria.

(a) Upon or after an adjudication or voluntary acknowledgment of paternity, the court may award custody to the mother or the father or to them jointly or to another suitable person as hereafter further specified as may be appropriate in the best interests of the child. In awarding custody to one of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent. The court shall also consider where and with whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter and whether one or both of the parents has established a personal and parental relationship with the child or has exercised parental responsibility in the best interests of the child.

In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement pursuant to section eleven or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests.

(b) Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock. In the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage.

(c) If either parent is dead, unfit or unavailable or relinquishes care of the child or abandons the child and the other parent is fit to have custody, that parent shall be entitled to custody.

(d) If a person who is not a parent of the child requests custody, the court may order custody to that person if it is in the best interests of the child and if the written consent of both parents or the surviving parent is filed with the court. Such custody may also be ordered if it is in the best interests of the child and if both parents or the surviving parent are unfit to have custody or if one is unfit and the other files his written consent in court.

(e) In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, “abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury.

“Serious incident of abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. For purposes of this section, “bodily injury” and “serious bodily injury” shall have the same meanings as provided in section 13K of chapter 265.

A probate and family court’s finding by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this section, an “abusive parent” shall mean a parent who has committed a pattern of abuse or a serious incident of abuse.

For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admissible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the probate and family court that a pattern or serious incident of abuse has occurred.

If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child’s best interests and provides for the safety and well-being of the child.

If ordering visitation to the abusive parent the court shall provide for the safety and well-being of the child, and the safety of the abused parent. The court may consider:

(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;

(b) ordering visitation supervised by an appropriate third party, visitation center or agency;

(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;

(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;

(e) ordering the abusive parent to pay the costs of supervised visitation;

(f) prohibiting overnight visitation;

(g) requiring a bond from the abusive parent for the return and safety of the child;

(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and

(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.

Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing.
Part II, Chapter 209C: Section 10.

Voluntary acknowledgment of paternity; force and effect; rescission; parental agreements regarding custody, support and visitation.

(a) A written voluntary acknowledgment of parentage executed jointly by the putative father, whether a minor or not, and the mother of the child, whether a minor or not, and filed with the registrar of vital records and statistics or with the court shall be recognized as a sufficient basis for seeking an order of support, visitation or custody with respect to the child without further proceedings to establish paternity, and no judicial proceeding shall be required or permitted to ratify an acknowledgment that has not been challenged pursuant to this section. A report, prepared on an electronic system of birth registration approved by the commissioner of public health and indicating that an acknowledgment pursuant to this chapter has been executed in accordance with section 3C of chapter 46 and filed with the registrar of vital records and statistics, shall be presumed to be a sufficient basis for seeking an order of support, visitation or custody without further proceedings to establish paternity. The voluntary acknowledgment shall be attested to before a notary public and shall have the legal effect as provided in this section. Unless either signatory rescinds the acknowledgment within 60 days of the date of signing as provided in this section, the acknowledgment shall establish paternity as of the date it has been signed by such putative father and mother and shall have the same force and effect as a judgment of paternity, subject to challenge within one year only on the basis of fraud, duress or material mistake of fact; provided, however, that if, prior to the expiration of the 60-day period, the signatory is a party to an administrative or judicial proceeding related to the child, including a proceeding to establish child support, visitation or custody, and fails to rescind the acknowledgment at the time of such proceeding, the acknowledgment shall thereafter have the same force and effect as a judgment, subject to challenge only as provided in this section. The person seeking to rescind the acknowledgment shall, within 60 days of signing the acknowledgment, file a petition in the probate and family court in the county in which the child and one of the parents resides seeking to rescind the acknowledgment, with notice to the other parent. If neither of the parents lives in the same county as the child, then such complaint shall be filed in the county where the child lives. If the child whose paternity is challenged is a recipient of public assistance and the department of transitional assistance, the department of children and families, the division of medical assistance or any other public assistance program has not been made a party, or if the child is receiving child support enforcement services from the IV-D agency pursuant to chapter 119A, the court shall notify the IV-D agency. The person seeking to rescind the acknowledgment shall bear the burden of proof in such proceeding. The responsibilities of a signatory arising from the acknowledgment shall not be suspended during the pendency of such challenge unless the court so orders for good cause shown. If either party rescinds the acknowledgment in a timely fashion, the court shall order genetic marker testing and proceed to adjudicate paternity or nonpaternity in accordance with this chapter; provided, however, that the rescinded acknowledgment shall constitute the proper showing required for an order to submit to such testing; and provided further, that the rescinded acknowledgment shall be admissible as evidence of the putative father’s paternity and shall serve as sufficient basis for admitting the report of the results of genetic marker tests. Upon adjudication of nonpaternity, the court shall instruct the registrar of vital records and statistics as provided in section 13 of chapter 46 to amend the birth record of the child in accordance with the order of the court.

(b) If a mother and father execute a voluntary acknowledgment of parentage as provided in (a), they may also make agreements regarding custody, support and visitation. Such agreements may be filed with any court with jurisdiction pursuant to this chapter; provided, that any such agreement which includes issues of custody or visitation must be filed with a division of the probate and family court department in the judicial district or county in which the child and one of the parents lives. Such agreements, if filed with and approved by the court shall have the same force and effect as a judgment of the court; provided, however, that the court shall have the same power to investigate the facts regarding custody, support and visitation prior to entering an order relative to those issues as it would have if no agreement had been filed; and provided further, that an agreement regarding custody and visitation shall be approved only if the court finds it to be in the best interests of the child.

(c) Voluntary acknowledgments and agreements made pursuant to this chapter shall be acknowledged in the presence of a notary public and shall include the residence addresses and social security numbers of each of the parents, the residence address of the child and, if available, the social security number of the child.

(d) A voluntary acknowledgment of parentage taken outside of the commonwealth shall be valid for the purposes of this section if it was taken in accordance with the laws of the state or the country where it was executed.
Part II, Chapter 209C: Section 11.

Trial; exclusion of public.
In actions under this chapter, the trial shall be by the court without a jury. In an action to establish paternity, the court shall, upon request of any party, exclude the general public from the room where the trial is held and may admit only persons directly interested in the case, including officers of the court and witnesses.
Part II, Chapter 209C: Section 12.

Inspection of paternity documents; segregation of records.
In an action to establish paternity or in which paternity of a child is an issue, all complaints, pleadings, papers, documents or reports filed in connection therewith, docket entries in the permanent docket and record books shall be segregated and unavailable for inspection only if the judge of the court where such records are kept, for good cause shown, so orders or the person alleged to be the father is adjudicated not to be the father of the child; provided, however, that the child, the child’s mother, the person adjudicated to be the father and the department of transitional assistance, the department of children and families, the division of medical assistance or any other public assistance program and the IV-D agency as set forth in chapter 119A, when the child who is or was the subject of the complaint is a recipient of public assistance or the attorney for any of them, and the department of children and families, when the child who is or was the subject of the complaint is within the care and protection of the department of children and families, is the subject of a petition for such care or protection pursuant to chapter 119 or is the subject of a petition to dispense with consent for adoption pursuant to subsection (b) of section 3 of chapter 210, shall have access to and the right to obtain copies of the papers, docket books and judgments in actions pursuant to this chapter. For good cause shown, which may be made ex parte or upon credible evidence, parties may file a complaint without the address, and the court shall impound a party’s address by excluding it from the complaint and from all other court documents and testimony, and shall ensure that the address is kept confidential from each other party except the IV-D agency as set forth in chapter 119A.
Part II, Chapter 209C: Section 13.

Complaints brought prior to birth.
An action to establish paternity of a child may be instituted during pregnancy of the mother but shall only be filed by the mother or her representative or by the IV-D agency as set forth in chapter 119A on behalf of the mother. In the case of any complaint brought prior to the birth of the child, no final judgment on the issue of paternity shall be made until after the birth of the child; provided, however, that the court may order temporary support or health care coverage.
Part II, Chapter 209C: Section 14.

Temporary orders; enforcement; information required to be given to petitioner; domestic violence record search.
At any time pursuant to an action under this chapter, the court may upon motion of any party or on its own motion issue a temporary order or final judgment including a vacate, restraining or no-contact order to protect a party or child. Any such order or judgment, including a custody provision if issued by a probate court, shall be served as specified under sections four and seven of chapter two hundred and nine A and shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE. Criminal violations of such orders shall be enforced pursuant to section seven of chapter two hundred and nine A.

The court may, in like manner, upon motion of any party or of a next friend on behalf of the child, and upon notice to the other parties, enter temporary orders providing for the support of the child or relative to the care and custody of the child or visitation rights with the child in accordance with the provisions of sections nine and ten.

All orders entered pursuant to this section, unless modified or revoked pursuant to section twenty or twenty-three of chapter two hundred and nine C, shall continue in force and be incorporated in the final judgment. Violations of any order or judgment may be punished as contempt.

Upon the filing of a request for an order to protect a party or a child under the provisions of the first paragraph of this section, a petitioner shall be informed that proceedings hereunder are civil in nature and that violations of orders issued hereunder are criminal in nature. Further, a petitioner shall be given information prepared by the appropriate district attorney’s office that other criminal proceedings may be available and such petitioner shall be instructed by such district attorney’s office relative to the procedures required to initiate criminal proceedings including, but not limited to, a complaint for a violation of section forty-three of chapter two hundred and sixty-five. Whenever possible, a petitioner shall be provided with such information in the petitioner’s native language.

When considering a request for relief pursuant to this section, a judge shall cause a search to be made of the records contained within the statewide domestic violence record keeping system maintained by the office of the commissioner of probation and shall review the resulting data to determine whether the named defendant has a civil or criminal record involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against the named defendant, a judge shall order that the appropriate law enforcement officials be notified and shall order that any information regarding the defendant’s most recent whereabouts shall be forwarded to such officials. In all instances where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner. In all instances where such an imminent threat of bodily injury is found to exist, the judge shall notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable.
Part II, Chapter 209C: Section 15.

Competency to testify; refusal to testify; costs of tests; admissibility of evidence.

(a) Both the plaintiff and the defendant are competent to testify in proceedings hereunder.

(b) Upon refusal of a witness, including a party, to testify under oath and produce evidence, the court may order such witness or party to testify under oath and produce evidence concerning all relevant facts. If a witness or party refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from such refusal.

(c) In an action pursuant to this chapter, the mother and the man alleged to be the father shall be competent to testify and no privilege or disqualification created under chapter two hundred and thirty-three shall prohibit testimony by a spouse or former spouse which is otherwise competent. If the mother is or was married, both she and her husband or her former husband may testify to non-access and parentage of the child.

(d) In an action to establish paternity, testimony relating to sexual access to the mother by an unidentified man at any time or by an identified man at any time other than the probable time of conception of the child is inadmissible in evidence unless offered by the mother.

(e) In an action to establish paternity, the court may view the mother, the child, and the putative father to note any resemblance among the parties notwithstanding the absence of expert testimony.

(f) Copies of bills for genetic marker tests and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, shall be admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary and customary. Nothing in this section shall be construed to limit the right of any party to the action or the IV-D agency to summon, at its own expense, a physician, agent of a hospital or other individual for the purpose of examination with respect to such bills or to rebut the contents thereof or for any other purpose to limit the right of a party or the IV-D agency to summon any other person to testify in respect to such bills or for any other purpose.

(g) All other evidence relevant to the issue of paternity of the child, custody of a child or support of a child shall also be admissible.

(h) In an action pursuant to this chapter where the rights to support of a party have been subrogated to the commonwealth pursuant to chapters 18, 119, or 118E, or Title IV, Parts A or E, or Title XIX of the Social Security Act, or any other public assistance program as required by federal or state law, the court shall proceed to establish orders pursuant to this chapter, notwithstanding the failure of the party to attend a hearing, upon a showing that written notice of the hearing was provided to the party by first class mail to the most recent residential address that the party has provided to the department of transitional assistance, the department of children and families or the division of medical assistance. For good cause shown, the court may set aside an entry of default and, if an order or judgment has been entered, may likewise set aside such order or judgment in accordance with rule 60(b) of the rules of domestic relations procedure.

(i) In an action pursuant to this chapter in a case receiving IV-D services, the court shall, upon good cause shown and upon verification of identity satisfactory to the court, permit a party to testify in an action pursuant to this chapter by telephone; and upon a showing that a party is incarcerated, permit the party to submit testimony by affidavit.
Part II, Chapter 209C: Section 16.

Genetic marker tests; affidavit; refusal to submit to test; costs.
In an action under this chapter to establish paternity of a child born out of wedlock, the court shall, on motion of a party and upon a proper showing except as provided in this section, order the mother, the child and the putative father to submit to one or more genetic marker tests of a type generally acknowledged as reliable and performed by a laboratory approved by an accreditation body designated by the federal Secretary of Health and Human Services pursuant to Title IV, Part D of the Social Security Act. An affidavit by the mother or the putative father alleging that sexual intercourse between the mother and the putative father occurred during the probable period of conception shall be sufficient to establish a proper showing. If during the probable period of conception, the mother was married to someone other than the putative father, the court may order genetic marker tests only after notice pursuant to subsection (c) of section 6 to the spouse or former spouse.

The court or the IV-D agency as provided in section 3A of chapter 119A may, order any person properly made a party under this chapter to submit to such testing. Unless a party objects in writing to the test results upon notice of the hearing date or within thirty days prior to the hearing, whichever is shorter, the report of the results of genetic marker tests, including a statistical probability of the putative father’s paternity based upon such tests, shall be admissible in evidence without the need for laying a foundation or other proof of authenticity or accuracy; provided, further, that such report shall not be considered as evidence of the occurrence of intercourse between the mother and the putative father; and provided, however, that such report shall not be admissible absent sufficient evidence of intercourse between the mother and the putative father during the period of probable conception. If such report indicates a statistical probability of paternity of ninety-seven percent or greater, there shall be a rebuttable presumption that the putative father is the father of such child and, upon motion of any party or on its own motion, the court shall issue a temporary order of support. If the report of the results of genetic marker tests or an expert’s analysis of inherited characteristics is disputed, the court may then order that an additional test be made at the same laboratory or different laboratory at the expense of the party requesting additional testing. Verified documentation of the chain of custody of genetic marker or other specimens is competent evidence to establish such chain of custody. The fact that any party refuses to submit to a genetic marker test shall be admissible and the court may draw an adverse inference from such refusal. The cost of making any tests ordered pursuant to this section shall, in the first instance, be chargeable against the party making the motion. The court in its discretion may order the costs of such testing to be apportioned among the parties provided, however, the court may not direct the IV-D agency as set forth in chapter 119A to pay for such tests, unless said IV-D agency is the moving party and provided further, that if the putative father is found to be the father, the court shall order the putative father to reimburse the IV-D agency or the other party. Payment for the costs of such tests shall be considered a necessary expense and if any party chargeable with the costs of the genetic marker tests is indigent as provided in section twenty-seven A of chapter two hundred and sixty-one, the court may direct payment of such costs by the commonwealth regardless of the type of tests requested by the moving party.
Part II, Chapter 209C: Section 17.

Judgments or orders of support; enforcement.
Each judgment or order of support which is issued, reviewed or modified pursuant to this chapter shall conform to and shall be enforced in accordance with the provisions of chapter one hundred and nineteen A.
Part II, Chapter 209C: Section 18.

Judgment or temporary order of support; enforcement.
A judgment of support issued in conclusion of a proceeding under this chapter or a temporary support order issued under this chapter may be enforced with one or more of the following methods:

(1) contempt in accordance with sections thirty-four and thirty-four A of chapter two hundred and fifteen;

(2) execution of the judgment;

(3) attachment of or lien against property;

(4) trustee process, in accordance with the provisions of chapter two hundred and forty-six;

(5) equitable actions to reach and apply for the enforcement of judgments; and

(6) any other civil remedy available for the enforcement of judgments or for the enforcement of support or custody orders entered under chapter two hundred and eight, and two hundred and nine, or received, entered or registered pursuant to chapter two hundred and nine D, including any remedy available under chapter 119A.
Part II, Chapter 209C: Section 19.

Modification of judgments; jurisdiction.
A court with original jurisdiction pursuant to section three has continuing jurisdiction, upon a complaint filed by a person or agency entitled to file original actions, to modify judgments of support, custody or visitation; provided however, that no modification concerning custody or visitation shall be granted unless the court finds that a substantial change in the circumstances of the parties or the child has occurred and finds modification to be in the child’s best interests. Except as restricted by section twenty-three, the court may also modify a judgment to protect a party or child. In furtherance of the public policy that dependent children be maintained as completely as possible from the resources of their parents and upon a complaint filed after a judgment of support, orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines promulgated by the chief justice for administration and management or if there is a need to provide for the health care coverage of the child. A modification to provide for the health care coverage of the child shall be entered whether or not a modification in the amount of child support is necessary. There shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome the presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. The order shall be modified accordingly unless the inconsistency between the amount of the existing order and the amount of the order that would result from application of the guidelines is due to the fact that the amount of the existing order resulted from a rebuttal of the guidelines and that there has been no change in the circumstances which resulted in such rebuttal; provided, however, that even if the specific facts that justified departure from the guidelines upon entry of the original order remain in effect, the order shall be modified in accordance with the guidelines unless the court finds that the guidelines amount would be unjust or inappropriate under the circumstances and that the existing order is consistent with the best interests of the child. A modification of child support may enter notwithstanding an agreement of the parents that has independent legal significance. For cases being enforced by the IV-D agency as set forth in chapter 119A, a support order may also be modified in accordance with section 3B of said chapter 119A.
Part II, Chapter 209C: Section 20.

Action to determine mother and child relationship.
Any interested party may bring an action to determine the existence of a mother and child relationship. Insofar as practicable, the provisions of this chapter applicable to establishing paternity shall apply.
Part II, Chapter 209C: Section 21.

Proceedings barred under this chapter.

(a) A decree or judgment entered on a petition filed pursuant to sections three or six of chapter two hundred and ten shall be a bar to a proceeding under this chapter.

(b) A proceeding under chapter two hundred and seven, two hundred and eight, two hundred and nine, two hundred and seventy-three, or two hundred and nine D shall not be a bar to any proceeding under this chapter. An action brought under this chapter may be consolidated with an action brought under chapters two hundred and seven, two hundred and eight, two hundred and nine or two hundred and nine D if both actions are pending in the same department of the trial court.

(c) If an action under chapter two hundred and seven, two hundred and eight, or two hundred and nine, is filed after the commencement of proceedings or after a judgment under this chapter, any order or judgment for support of a child issued in the annulment, divorce or separate support proceedings shall supersede any prior order or judgment for support of the same child under this chapter; and any assignment made under this chapter shall be superseded by an assignment made in the divorce, separate support, or annulment proceeding; provided, however, that nothing herein shall prevent the court in such annulment, separate support or divorce proceeding from entering an order or judgment enforcing any previous support order or judgment for support under this chapter which has not been paid, consistent with the provisions of section nine.

(d) No proceeding hereunder shall be barred by a prior finding or adjudication under any repealed sections of chapter two hundred and seventy-three or by the fact that a child was born prior to the effective date of this chapter.
Part II, Chapter 209C: Section 22.

Intermarriage of parents; jurisdiction.

(a) If, after adjudication of paternity or voluntary acknowledgment of parentage, the parents of the child intermarry, any order or judgments of the court relative to support, custody, visitation and restraint on personal liberty shall be null and void, except as to any support arrearage which is owed to the commonwealth as reimbursement for public assistance and which accrued before the date that the parents intermarry and the court shall have no continuing jurisdiction over the parties under this chapter.

(b) If, after proceedings are commenced but before an adjudication of paternity is issued, the parents intermarry, the court may adjudicate paternity hereunder but shall have no other jurisdiction over the child or the parents under this chapter.

(c) An action under this chapter may be commenced after the intermarriage of the parents of the child only to determine paternity.
Part II, Chapter 209C: Section 23.

Forms.
The administrative justices of the district, Boston municipal and the probate and family court department of the trial court shall jointly promulgate forms for complaints, agreements and registrations of parentage for use under this chapter, which shall be in such form and language to permit a person to prepare and file such forms pro se.
Part II, Chapter 209C: Section 24.


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