Unmarried or Never Married Parents file approximately 20,000 paternity matters in a Massachusetts Probate and Family Court Department each year. These filings often include parenting agreements about caring for their child(ren).

Parents can work together to work out the terms of their parenting plan. For assistance, parents can work with a mediator to develop a parenting plan or visitation schedule, to review child support, and to reach agreement about physical and legal custody of a child or children. Once agreement is reached, many unmarried parents submit their agreement to a probate court so that it can become a legally enforceable court order. A judge from a Probate and Family Court Department in Massachusetts will then review the agreement to determine if it is in the best interest of the child.

There are many advantages to using mediation to create these parenting agreements. Specifically, mediation allows parents to decide what is best for them rather than handing that decision over to the court. For instance, if there is no court order concerning the custody of the child of an unmarried couple, the Massachusetts paternity statute states that the mother will retain sole legal and sole physical custody. Working with a mediator to develop a parenting agreement enables unmarried couples to define custody in the way that works best for themselves and their children.

Common topics never married parents address in mediation include:

Q. I am the mother of a newborn child. My baby’s father and I are not married. We have not been to court about custody. Who has custody of our baby?

A. If there are no court orders concerning custody of a child and the mother and father are not married, the mother automatically has sole legal and physical custody of the child.

Q. Is there more than one type of custody?

A. Yes. There are two types of custody - legal custody and physical custody.

Legal custody defines who has authority to make major decisions on behalf of your child about such issues as education, medical care and religion. If the parents share legal custody, they will work together to make major decisions in the child’s life. If a parent has sole legal custody, that parent shall have sole responsibility for making major decisions about these issues.

Physical custody defines where the child lives. One parent may have sole physical custody of the child, which means that the child’s primary residence is with that parent, but the child can still spend time with the other parent. Parents can also share joint physical custody, which means the child resides with each parent for significant periods of time.

The type of custody which works best for your child depends a great deal on your relationship with the other parent. Joint custody arrangements require a great deal of cooperation between the parents and an ability to communicate with each other to make important, sometimes difficult, decisions for your child.

Q. Can unmarried parents agree to share custody of a child?

A. Yes. Unmarried parents can reach an agreement about custody and can ask to have their agreement made part of a court order. The judge must review the agreement and find that it is in the best interest of the child.

Q. Can we design our own agreement?

A. Yes. Any plan which you design is subject to a court’s approval, but the court tries to respects the wishes of parents. For example, some parents dislike the word “visitation.” A parenting agreement may be written that does not use the word “visitation” as long as the agreement describes each parent’s access to the child clearly and in enough detail so that both parents understand the plan and can avoid arguments about it.