Winter 2017: PRESUMED PARENTS - The Born To and Holding Out Requirements of G.L. c. 209C

By Elizabeth A. Roberts

Marriage rates are at an all-time low, with the decline expected to continue in the coming years.1 Some would-be parents are going-it alone, becoming single-parents by choice, while others are having children with non-marital partners. The law moves more slowly than the family has evolved. There has been little guidance from the Massachusetts courts with regard to protecting a non-marital parent-child relationship where there is no biological connection between the child and parent. Who fits into this category of parent? Opposite sex and same sex couples who use donor egg and/or sperm most frequently fall into this category.

The provisions of Massachusetts General Laws c. 209C are easily applied to cases where both parents have biological ties to a child. Despite the increase in adults engaging in assisted reproductive technologies with partners outside of marriage, until recently there was a question as to the application of G.L. c.209C in cases where an alleged parent has no biological ties to a child. In the past, attorneys often advised that without a biological or adoptive connection to the child, the best one could hope for was visitation with the child on the basis that he or she was a de facto parent.

This changed with the Supreme Judicial Court’s decision in Partanen v. Gallagher, 475 Mass. 632 (2016), when the Court found that G.L. c. 209C2 presumes parentage, regardless of biological connections between a parent and child, when two requirements are satisfied: (1) born to; and (2) holding out. Put plainly, to establish parentage on behalf of a non-biological parent who does not have the benefit of the presumptions provided by marriage and adoption (also referred to as a “presumed parent”), a party must establish that:

  1. The child who was born to an unmarried couple (G.L. c. 209C, §1); and
  2. The parties/parents jointly brought the child “into their home and openly held out the child as their child.” G.L. c. 209C, § 6.

Born To Requirement

Karen Partanen (“Partanen”),3 who sought legal and custodial rights to two children, alleged that she was engaged in a long-term relationship where the parties chose not to marry. According to Partanen, both parties wanted children, and as a couple, the parties engaged in assisted reproductive technology that resulted in Gallagher giving birth to two children, several years apart. Notably, Partanen was unsuccessful at her attempts to get pregnant prior to Gallagher’s attempts.

Clients asserting a parentage claim should be prepared to allege specific facts relating to the “born to” requirement. To that end, the following list is not exhaustive but represents some compelling facts supportive of fulfilling the “born to” requirement when crafting a Complaint for Parentage:

  1. A party’s presence at conception and birth, as well as at medical appointments during the pregnancy;
  2. A party’s consent (or lack thereof) with regard to assisted reproductive technology;
  3. How a party is portrayed to donors, cryobank, physicians and other professionals involved in the fertility process;
  4. Participation in the selection of donor, medical providers and medical facilities;
  5. Payments made related to medical care, including, but not limited to surrogates and/or cryobanks;
  6. Steps taken to ready the home for the child prior to the birth;
  7. Acknowledgement of the party as a parent to the child in advance of birth by family, friends and providers; and
  8. Although unmarried, any other legal or non-legal recognition of the parties’ relationship (e.g. domestic partnership, emergency contacts, estate planning documents).

As with any litigation matter, it is important to consider evidentiary issues related to particular documents. In many cases, documents that may be needed at trial are from out of state entities and/or providers, and obtaining certified records can potentially pose a problem.

Holding Out

Brought Jointly to Shared Home

Establishing the presumption of parentage not only requires that the child be “born to” the person claiming the presumption of parentage, but also that the child was (a) brought by both parties/parents to a home that was shared by them; and (b) held out to the community as a child of the two parties/parents. G.L. c. 209C, § 6. Partanen and Gallagher, after each birth, brought the child back into a home they shared in Florida. Some considerations when evaluating whether the parties jointly brought the child back into a shared home are:

  • Presence at the discharge of the child from hospital;
  • Presence at the home after discharge from the hospital;
  • Ownership of home or parties to lease;
  • Length of relationship prior to birth;
  • Payments made by the party / parties for the home; and
  • Representations by both relating to relationship and who resides in home.

Held out to the Community as a Parent

The “holding out” requirement for presumed parents relates to facts occurring post-birth and is not dissimilar to the requirement for holding out in many states with regard to common law marriage or to prove a cohabitation relationship between significant others for purposes of alimony reduction and/or termination. The premise of the requirement is how the parties/parents presented themselves to other members of the community with regard to their relationship with the child. Did Party A tell others that Party B was a parent? Consider a presumed parent’s role relating to the following categories (again, not exhaustive) when drafting a Complaint for Parentage:

  1. Name references by children and others (e.g. Mama, Mommy, Dad, Daddy, Papa);
  2. Decision-making and division of parenting duties;
  3. Forms for educational and medical providers and the treatment of each party on those forms:
    1. Who completed;
    2. Emergency contacts listed;
    3. Access and authority granted to presumed parent; and
    4. Execution of form;
  4. Written messaging from the parties:
    1. Holiday cards;
    2. Birth announcements;
    3. Emails from parties to family members and friends;
    4. Social media posts; and
    5. Family projects for school (describing make up of family);
  5. Written messaging from third parties:
    1. How is it addressed (i.e. to which party)?
    2. What assumptions are made?
  6. Caretaking roles of each party;
  7. Payments made by each party for child-related and home related costs;
  8. Registration:
    1. School;
    2. Extracurricular activities; and
    3. Daycare / after-school programming;
  9. Participation in milestones:
    1. Baptisms;
    2. Religious ceremonies;
    3. Graduations;
    4. Recitals; and
    5. School functions;
  10. Special needs and/or considerations:
    1. Activities in which a presumed parent is particularly involved (e.g. coaching); and
    2. Expertise relating to a special need of a child.

Like in any other custodial matter, the best interests of the child are paramount, and many of the facts an attorney will want to present to persuade a court relative to parenting time and decision-making will be the same as in more typical custodial disputes. When representing a presumed parent, however, the “born to” and “holding out” requirements should guide all aspects of your case—from initial intake, to pleading the necessary elements to avoid dismissal, to discovery, to the eventual trial. As discussed, careful consideration of potential evidentiary hurdles and other issues earlier in the litigation process is important.

The focus in this article has been on litigating a parentage claim, but an important take away from the Partanen case is that presumed parents need not litigate. A voluntary acknowledgement of parentage may be executed regardless of a party’s biological connection to a child. Any parenting agreement reached by parties may be incorporated into a Judgment of Parentage.

Elizabeth Roberts concentrates her practice on domestic relations law. She assists clients in a wide range of family law matters, including divorce, child custody, prenuptials, postnuptials, adoptions, removal cases, and unmarried partners. Elizabeth also counsels clients in a probate law matters, including guardianships, conservatorships, will contests, and trust and estate disputes. Elizabeth was previously associated with Todd & Weld LLP, a preeminent Boston litigation firm, where her practice focused exclusively on domestic relations and probate matters. Prior to joining a private practice, Elizabeth was a judicial clerk with the Massachusetts Probate & Family Court. Elizabeth assists clients in direct negotiations to settle cases, as well as guides them through attorney-assisted alternative dispute resolution. While most cases in the Probate & Family Court settle, Elizabeth is a skilled litigator who is able to take a case from start to finish. For example, she persuaded a Massachusetts Probate and Family Court judge to award joint legal and physical custody of children to a same-sex, non-biological parent, in a case believed to be the first of its kind in Massachusetts. In a related case, Elizabeth is collaborating with GLAD on an appeal to the Supreme Judicial Court for a determination that the non-biological parent be granted the status of a legal parent. Elizabeth also mediates all types of domestic relations matters, assisting couples and families in privately resolving their disputes.

1  Heidi Stevens, Marriage at 100 year low--and that's a good thing, Chicago Tribute, May 18, 2015, (last visited Feb 4, 2017).  
2  While G.L. c. 209C refers to a “man and woman” the statute must be read in gender-neutral terms.
3  Importantly, Partanen’s Complaint for Parentage was dismissed by a Probate & Family Court judge, and it was that dismissal that led to the SJC’s decision in Partanen.  There was no trial that resulted in the Court making findings of fact.  Instead, the SJC looked at the facts as alleged in Partanen’s Complaint in reversing the dismissal.  The Partanen case is used as an illustration only and solely for the purpose of describing the born to and holding out requirements.