a year ago, my friend learned that his then 3 year old daughter looked
a lot like the little girls across the streets, so he eventually had a
paternity test done that proved the child was not his.  The fiend
never realized that he would forfeit his right to any custody of the
now 4 year old daughter who only knows my friend as her daughter. 
there's been a lot of ugliness for 2 years, the divorce hearing was 2
days ago.  the man's lawyer said nothing abot the implication of no
visitation or shared custody.  this "mother" sat down their 3 sons
before Christmas; ages 9,7,5 to tell them their sister was not
Daddy's.  To go on about this woman would necessitate writing a book. 
bottom line, the man on one occasion was physically violent to his
then wife.  He attended anger management classes.  He has been paying
for that horrific mistake since.  He is a remarkable father under the
stressful conditions.  His exwife has had many affairs and is
presently living with a man mant years younger-the two of them show no
discretion in their home that my friend pays the mortage.  Is there
anything he can do to obtain shared custody?

Dear nettie126,

The answer to your question is "yes" - there is a legal remedy
available to him. But it is one he needs to exercise now.

From what you have described, neither the mother nor your friend are
disputing the issue of paternity. Your friend nonetheless wishes to
continue his parent-child relationship with his daughter after the
divorce, despite his non-parternity.

The legal remedy available to him is called "equitable parenthood". In
the case of E.N.O. vs. L.M.M., 429 Mass. 824; 711 N.E.2d 886 (1999),
the Massachusetts Supreme Judicial Court recently described "equitable
parenthood" as follows:

====================================
The equitable parent doctrine provides that the husband of the
biological mother of a child born or conceived during marriage, who is
not the biological father of a child, may be treated as the father if
a parental relationship is acknowledged by the father and child or is
developed in cooperation with the mother. See C.M. v. P.R., 420 Mass.
220, 223-24, 649 N.E.2d 154 (1995).
====================================

(If you are not familiar with legal notation, cases are cited in the
form of "Volume, Reporter Name, Page Number". For example, "429 Mass.
824" means "Volume 429 of the Massachusetts Reporter, starting at page
824".)

So as long as the child was conceived while your friend was married to
the mother, and as long as he had a father-child relationship with the
child developed in cooperation with the mother, he can assert that he
is an "equitable parent", and thus should be vested by the court with
the full rights (and duties) of parenthood. From your summary of the
facts, it appears that all of these elements have been met.

When I refer to duties, please note that as an adjudicated equitable
parent, in addition to having the ability to seek court-ordered
custody or parenting time, he can also be obligated to pay child
support, provide insurance, or otherwise support the child just as if
it were his biological child.

The reason I say he needs to assert his rights now is that, should he
wait until after a divorce judgment declares that he is not the father
and has no rights, he will be unable to subsequently claim to be an
equitable parent. A court would almost certainly subsequently apply
the doctrine of "res judicata" - essentially, "something already
decided by the court" - to prevent him from re-opening the issue of
his rights as a parent.

So, if he wishes to preserve his rights, he should work with his
attorney *now*, to assert his rights as an equitable parent before the
trial court issues a judgment of divorce which forecloses his rights.


Research strategy:

As a lawyer with a background in family law, I have worked on a number
of cases where the issue of equitable parenthood arose. I applied this
knowledge to find the relevant case law in Massachusetts, to confirm
the existence and extent of the doctrine in that state.

I utilized the LexisOne database of case law, which provides free
access to recent case law from around the nation to registered users.
I searched for "equit! /2 parent!" - with the "!" being a "wildcard
character", and "/2" meaning "within two words of". This search was
designed to bring up the most common variations on the term "equitable
parent", including "equitable parenthood" and "parenthood by equity".
http://www.lexisone.com/

I also ran a Google search for "equitable parent massachusetts".
://www.google.com/search?q=equitable+parent+massachusetts


I hope your friend finds this information to be helpful.

- expertlaw

I feel the answer is one that is highly intelligent, from experience
with family law.  I passes on the info today to the family for their
own thoughts on it as it is such a personal decision for this younf
man to make.  But your answer spoke the need to act swiftly if that is
what he chooses.  this is a great service & I'm grateful for the
caliber of the researcher's answers.