Mass. Gen. Laws ch. 209C, sec. 25 — MA Code / Part II / Title III / Chapter 209C / Section 25
Adjudication of parentage of a child; commencement; governance; verified complaints; standing; temporary order of contact; de facto parent; third party right to visitation
Status: in_force

Section 25. (a) This section shall apply to nonmarital and marital children. (b) A proceeding to adjudicate parentage of a child under this section may be commenced only by a person who: (i) is alive when the proceeding is commenced; and (ii) claims to be a de facto parent of the subject child under this section. (c) A proceeding under this section shall be commenced during a child's lifetime and before the child attains 18 years of age. (d) Proceedings under this section shall be governed by the Massachusetts Rules of Domestic Relations Procedure. (e) All parents, legal guardians and legal custodians of the subject child shall be entitled to notice (f) The plaintiff shall file a verified complaint alleging specific facts to support each element required to establish de facto parentage as set forth in subsection (i), along with any other pleadings, affidavits or information required by the court. The verified complaint shall be served on all parents, legal guardians and legal custodians of the child and any other party to the proceeding. Prior to an adjudication of the merits, and within 60 days of the commencement of a proceeding under this section, the court shall determine, based on the pleadings, whether the plaintiff has alleged facts sufficient to satisfy each element required to establish de facto parentage. Upon request made by a party entitled to notice or upon the court's own initiative, the court may hold a hearing on the sufficiency of the pleadings; provided, however, that if the court holds any such hearing, the hearing shall be held on an expedited basis. Failure of a pleading to meet these standards shall constitute grounds for the court to enter a sua sponte judgment of dismissal without prejudice. (g) Prior to an adjudication of the merits, and within 60 days of the commencement of a proceeding under this section, the court shall determine whether the plaintiff has standing to seek an adjudication of parentage of a child under this section. Upon request made by a party entitled to notice or upon the court's own initiative, the court may hold a hearing on the issue of standing; provided, however, that any such hearing shall be held on an expedited basis; and provided further, that a hearing shall be required and there shall be a rebuttable presumption against standing if the court finds by a preponderance of the evidence that: (i) the plaintiff is or was the defendant to: (A) an abuse prevention order issued after notice and hearing pursuant to chapter 209A; (B) a protection order issued pursuant to section 34B or 34C of chapter 208; or (C) a harassment prevention order issued pursuant to chapter 258E, involving the child, a parent of the child or a household member of the child; (ii) the department of children and families has made a determination supporting an allegation of abuse against the plaintiff with respect to the subject child or another child in the same household; (iii) a defendant is engaged or has engaged in military service as defined in 50 U.S.C. App. 511 within the past 3 years, unless the defendant consents in writing and such written consent is filed with the complaint; (iv) a defendant parent executed a military family care plan and but for the plan, the plaintiff would not meet at least 1 of the requirements of subsection (i), unless the defendant consents in writing and such written consent is filed with the complaint; or (v) the plaintiff is or was the foster parent of the child and but for the plaintiff's role as foster parent, the plaintiff would not meet at least 1 of the requirements of subsection (i); or (vi) the plaintiff engaged in duress, coercion or threat of harm to establish any element of de facto parentage as set forth in subsection (i). (h) A plaintiff may file and serve a motion seeking a temporary order of contact between the subject child and the plaintiff contemporaneously with the complaint. After a hearing, the court may enter a temporary order concerning contact between the child and the plaintiff. No temporary order shall issue before a determination of standing; provided, however, that a hearing on the motion may occur on the same date as any hearing under subsections (f) or (g). (i) Subject to subsection (j), the court shall adjudicate a plaintiff with standing in a proceeding commenced under this section to be a legal parent of the subject child if the plaintiff demonstrates by clear and convincing evidence that: (i) the plaintiff resided with the child as a regular member of the child's household for not less than 3 years or 40 per cent of the child's life, whichever is shorter; provided, however, that the period is not less than 2 years; provided further, that the court may, in its discretion, accept a shorter period in extraordinary circumstances for good cause shown; (ii) the plaintiff engaged in consistent caregiving of the child, including, but not limited to, shaping the child's daily routine, addressing the child's developmental needs and providing for the child's education and medical care, individually or cooperatively with another parent; (iii) the plaintiff undertook full and permanent responsibilities of a parent of the child without expectation or payment of financial compensation; (iv) the plaintiff held out the child as the plaintiff's child; (v) the plaintiff established a bonded and dependent relationship with the child that is parental in nature; (vi) each parent of the child consented to the bonded and dependent relationship required under clause (v); provided, however, that for the purposes of this section, consent shall include that each parent, over a period of not less than 6 months: (a) held out the plaintiff as a parent of the child; and (b) engaged in shared decision making with the plaintiff regarding significant issues of the child's education, health and welfare; provided further, that the court may determine that a parent has impliedly consented where that parent has not, without good cause, meaningfully engaged with the subject child through direct contact, participation in decision making or regular financial support for a period of 2 years; provided further, that good cause may include evidence that the parent attempted to meaningfully engage with the subject child by regularly requesting contact or participation in decision making but was prevented from doing so by another person; provided further, that a notarized document affirming consent executed by a parent shall be evidence of that parent's consent; and provided further, that consent to temporary guardianship shall not constitute evidence that a parent consented under this clause; and (vii) adjudicating the plaintiff to be the child's parent is in the best interest of the child. In making this determination, the court shall consider evidence of past or present abuse by the plaintiff toward a parent or the child as a factor contrary to the best interest of the child; provided, however, that a finding by a preponderance of the evidence that the plaintiff engaged in duress, coercion or threat of harm in order to establish any of the elements of clauses (i) to (vi), inclusive, shall be considered evidence of abuse; provided further, that a finding by a preponderance of the evidence that a pattern or serious incident of abuse as defined in section 10 by the plaintiff against a parent or child has occurred shall create a rebuttable presumption that it is not in the best interest of the child that the plaintiff be adjudicated a parent; and provided further, that where there is credible evidence of abuse and the court adjudicates the plaintiff to be a parent of the subject child, the court shall make detailed written findings on the presence and nature of the abuse, its effect on the child and its impact on the plaintiff's parenting ability. (j) Subject to other limitations in this section, if in a proceeding to adjudicate the plaintiff as a de facto parent, there is more than 1 defendant parent and the court determines that the requirements of subsection (i) are satisfied, the court shall adjudicate parentage under subsection (c) of section 26. (k) The adjudication of a plaintiff as a de facto parent under this section shall not affect the legal parentage of any other parent to the child and shall not be considered evidence of parental unfitness of a defendant parent to the child. (l) Custody, parenting time, visitation and child support shall be determined in accordance with applicable laws, rules, regulations, orders and guidelines. (m) Nothing in this section shall be interpreted to preclude an action in equity pursuant to section 6 of chapter 215 to establish a third-party right to visitation.

Section 25. (a) This section shall apply to nonmarital and marital children.

(b) A proceeding to adjudicate parentage of a child under this section may be commenced only by a person who: (i) is alive when the proceeding is commenced; and (ii) claims to be a de facto parent of the subject child under this section.

(c) A proceeding under this section shall be commenced during a child's lifetime and before the child attains 18 years of age.

(d) Proceedings under this section shall be governed by the Massachusetts Rules of Domestic Relations Procedure.

(e) All parents, legal guardians and legal custodians of the subject child shall be entitled to notice

(f) The plaintiff shall file a verified complaint alleging specific facts to support each element required to establish de facto parentage as set forth in subsection (i), along with any other pleadings, affidavits or information required by the court. The verified complaint shall be served on all parents, legal guardians and legal custodians of the child and any other party to the proceeding. Prior to an adjudication of the merits, and within 60 days of the commencement of a proceeding under this section, the court shall determine, based on the pleadings, whether the plaintiff has alleged facts sufficient to satisfy each element required to establish de facto parentage. Upon request made by a party entitled to notice or upon the court's own initiative, the court may hold a hearing on the sufficiency of the pleadings; provided, however, that if the court holds any such hearing, the hearing shall be held on an expedited basis. Failure of a pleading to meet these standards shall constitute grounds for the court to enter a sua sponte judgment of dismissal without prejudice.

(g) Prior to an adjudication of the merits, and within 60 days of the commencement of a proceeding under this section, the court shall determine whether the plaintiff has standing to seek an adjudication of parentage of a child under this section. Upon request made by a party entitled to notice or upon the court's own initiative, the court may hold a hearing on the issue of standing; provided, however, that any such hearing shall be held on an expedited basis; and provided further, that a hearing shall be required and there shall be a rebuttable presumption against standing if the court finds by a preponderance of the evidence that:

(i) the plaintiff is or was the defendant to: (A) an abuse prevention order issued after notice and hearing pursuant to chapter 209A; (B) a protection order issued pursuant to section 34B or 34C of chapter 208; or (C) a harassment prevention order issued pursuant to chapter 258E, involving the child, a parent of the child or a household member of the child;

(ii) the department of children and families has made a determination supporting an allegation of abuse against the plaintiff with respect to the subject child or another child in the same household;

(iii) a defendant is engaged or has engaged in military service as defined in 50 U.S.C. App. 511 within the past 3 years, unless the defendant consents in writing and such written consent is filed with the complaint;

(iv) a defendant parent executed a military family care plan and but for the plan, the plaintiff would not meet at least 1 of the requirements of subsection (i), unless the defendant consents in writing and such written consent is filed with the complaint; or

(v) the plaintiff is or was the foster parent of the child and but for the plaintiff's role as foster parent, the plaintiff would not meet at least 1 of the requirements of subsection (i); or

(vi) the plaintiff engaged in duress, coercion or threat of harm to establish any element of de facto parentage as set forth in subsection (i).

(h) A plaintiff may file and serve a motion seeking a temporary order of contact between the subject child and the plaintiff contemporaneously with the complaint. After a hearing, the court may enter a temporary order concerning contact between the child and the plaintiff. No temporary order shall issue before a determination of standing; provided, however, that a hearing on the motion may occur on the same date as any hearing under subsections (f) or (g).

(i) Subject to subsection (j), the court shall adjudicate a plaintiff with standing in a proceeding commenced under this section to be a legal parent of the subject child if the plaintiff demonstrates by clear and convincing evidence that: (i) the plaintiff resided with the child as a regular member of the child's household for not less than 3 years or 40 per cent of the child's life, whichever is shorter; provided, however, that the period is not less than 2 years; provided further, that the court may, in its discretion, accept a shorter period in extraordinary circumstances for good cause shown; (ii) the plaintiff engaged in consistent caregiving of the child, including, but not limited to, shaping the child's daily routine, addressing the child's developmental needs and providing for the child's education and medical care, individually or cooperatively with another parent; (iii) the plaintiff undertook full and permanent responsibilities of a parent of the child without expectation or payment of financial compensation; (iv) the plaintiff held out the child as the plaintiff's child; (v) the plaintiff established a bonded and dependent relationship with the child that is parental in nature; (vi) each parent of the child consented to the bonded and dependent relationship required under clause (v); provided, however, that for the purposes of this section, consent shall include that each parent, over a period of not less than 6 months: (a) held out the plaintiff as a parent of the child; and (b) engaged in shared decision making with the plaintiff regarding significant issues of the child's education, health and welfare; provided further, that the court may determine that a parent has impliedly consented where that parent has not, without good cause, meaningfully engaged with the subject child through direct contact, participation in decision making or regular financial support for a period of 2 years; provided further, that good cause may include evidence that the parent attempted to meaningfully engage with the subject child by regularly requesting contact or participation in decision making but was prevented from doing so by another person; provided further, that a notarized document affirming consent executed by a parent shall be evidence of that parent's consent; and provided further, that consent to temporary guardianship shall not constitute evidence that a parent consented under this clause; and (vii) adjudicating the plaintiff to be the child's parent is in the best interest of the child. In making this determination, the court shall consider evidence of past or present abuse by the plaintiff toward a parent or the child as a factor contrary to the best interest of the child; provided, however, that a finding by a preponderance of the evidence that the plaintiff engaged in duress, coercion or threat of harm in order to establish any of the elements of clauses (i) to (vi), inclusive, shall be considered evidence of abuse; provided further, that a finding by a preponderance of the evidence that a pattern or serious incident of abuse as defined in section 10 by the plaintiff against a parent or child has occurred shall create a rebuttable presumption that it is not in the best interest of the child that the plaintiff be adjudicated a parent; and provided further, that where there is credible evidence of abuse and the court adjudicates the plaintiff to be a parent of the subject child, the court shall make detailed written findings on the presence and nature of the abuse, its effect on the child and its impact on the plaintiff's parenting ability.

(j) Subject to other limitations in this section, if in a proceeding to adjudicate the plaintiff as a de facto parent, there is more than 1 defendant parent and the court determines that the requirements of subsection (i) are satisfied, the court shall adjudicate parentage under subsection (c) of section 26.

(k) The adjudication of a plaintiff as a de facto parent under this section shall not affect the legal parentage of any other parent to the child and shall not be considered evidence of parental unfitness of a defendant parent to the child.

(l) Custody, parenting time, visitation and child support shall be determined in accordance with applicable laws, rules, regulations, orders and guidelines.

(m) Nothing in this section shall be interpreted to preclude an action in equity pursuant to section 6 of chapter 215 to establish a third-party right to visitation.