In Massachusetts there is a presumption that a child born of a woman who is married, or was married in the last three hundred days before the child's birth, is the child of that woman's husband. This is a legal presumption and can be rebutted by evidence.

If you are filing a Paternity Complaint and the mother was married at the time of the child's birth, or in the last three hundred days before the child's birth, then the Court requires that you use a different form and that you include the Husband as a Defendant in the action. Usually a DNA test will be performed to confirm that the Husband is not the Father (which is typically sufficient evidence to rebut the presumption) and then the action can proceed similar to any other Paternity action.

This is apparently not the case in every state, as evidenced by a recent case in Michigan where a biological Father was denied parental rights because his child was born to a married couple, and Michigan law designated the Husband as the Father. According to this ABA article, the only way to overcome this presumption in Michigan is in a dispute between the Husband and Wife, so the Father had no standing. I tend to agree with the Father's lawyer who was quoted as claiming this ruling was "absurd."

Last week, a colleague in North Carolina wrote about the different legal treatment in North Carolina between children born to married parents and "illegitimate" children (children not born to married parents -- many of our laws have not been updated since the dawn of the politically correct era, and label such children as "illegitimate" or "bastards," reflecting antiquated prejudices and stigmas against such children). The purpose of this post is to describe the ways treatment of such children in Massachusetts differs in some instances and is similar in others:

• Illegitimate children may not inherit property from their father (except through a Last Will & Testament, voluntary acknowledgment of paternity, or an adjudication of paternity);
• Illegitimate children are not eligible for survivor's Social Security Benefits as a result of the death of the child's father (42 U.S.C. § 416(h)(2)(A); M.G.L. c. 190 § 5);
• Illegitimate children may sue for wrongful death of their deceased father (Levy v. Louisiana, 391 U.S. 68 (1968));
• In Massachusetts, the father of an illegitimate child may NOT have his parental rights terminated for the father's failure to legitimate the child (M.G.L. c. 119 § 26(4)) M.G.L. c. 210 § 3);
• The father of an illegitimate child does not have the same notice rights in an adoption proceeding involving the illegitimate child, unless the father has been adjudicated to be the father, but even if he has not been so adjudicated he may still file a parental responsibility claim to obtain the same notice rights (M.G.L. c. 210 § 4A);
• The birth certificate of a child who is legitimated will be changed to show the father's name (M.G.L. c. 46 § 13);
• Procedures for the establishment of child support are abbreviated. If a child is born out of wedlock, child support is established in paternity proceedings. If a child is born to married parents, child support is established during divorce proceedings.

Additionally, in Massachusetts there is a difference in the treatment of child support between "illegitimate" children and children born of a marriage. For "illegitimate" children, child support may be sought from the time of the child's birth. For children born of a marriage, child support may only be sought in a divorce dating back to the date of filing or date or service of the complaint for divorce.