Q. Last January, my Ex-boyfriend and I had a baby. We broke up a month before he was born because my Ex accused me of cheating – I didn’t cheat. He didn’t agree to be named on the birth certificate, so I didn’t list him. When I filed for child support, he insisted on a DNA test.
Then, the pandemic started, and my mom offered for me to move home with her so she could help with the baby. She lives in New Jersey. I moved last April and have been living there ever since. He didn’t do the DNA test right away because of COVID, but last September he finally did the test proving what I knew all along – he is the father.
Now my Ex is arguing that I left the state improperly and need to come back because he didn’t agree I could leave with our son. I don’t understand how he has the right to make me come back when he didn’t do anything to help and I don’t know where we would be if my mom didn’t step in. We have a pre-trial conference coming up in March. Do I need to be worried? Will the judge make me come back?
Massachusetts law says that neither party to a divorce can move minor children out of the state without a court order or agreement of the other party. Because you were never married, this law doesn’t strictly apply to your circumstances. However, there is case law which holds that children born out of wedlock ought not to be treated differently than children of married couples. Likewise, there is case law which says, despite the specific reference to a divorce in the statute, it is meant to apply to children born out of wedlock as well.
Because you were never married and your Ex was not on the birth certificate, there is a presumption of sole custody to you. If you have sole custody you can ask the court for permission to permanently move your son to New Jersey. If you were to make that argument, the court would apply a test to determine if you have a real advantage in locating to New Jersey which would trickle down to benefit your son. Be sure to raise the argument that your being in New Jersey is a real advantage at the pre-trial conference.
However, you have an even better argument for remaining in New Jersey. Because you moved out of state before your Ex was adjudicated the father, there is a case that says the court cannot order you to return. At the time of the move, there was no other legal parent from whom you had to seek permission. Your Ex’s decision not to be listed on the birth certificate may have just come back to bite him in the back side.