Maternal and Joint Custody Presumptions for Unmarried Parents: Constitutional and Policy Considerations in Massachusetts and Beyond
Bernardo Cuadra, 32 W. New Eng. L. Rev. 599 (2010)
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This Note examines the statutory custodial presumptions that distinguish the unmarried father from the unmarried mother, as well as from divorcing parents, with a focus on Massachusetts legal custody awards. Given the gender-based distinction built into these statutes and the distinctions drawn between the putative father and the divorcing father, this Note first asks if these statutes are subject to constitutional challenge. Second, this Note questions if these statutes reflect sound policy decisions by evaluating the benefits of joint custody arrangements. Third, this Note focuses on the Massachusetts custody statute to determine if it can be more narrowly crafted to protect the interests of willing and involved unwed fathers, especially those similarly situated to their child’s unwed mother. This Note ultimately argues that the Massachusetts statutes should be amended to ensure equal treatment of unmarried fathers in custody disputes.
