Massachusetts Jurisdiction Temporary Child Custody Evidence Emergency Permanent Custody Lawyers Attorneys
JOHN MACDOUGALL vs
JOHN MACDOUGALL vs. PATRICIA ACRESSUPREME JUDICIAL COURT OF MASSACHUSETTS
January 5, 1998, Argued
April 30, 1998, Decided
Jessica lived with her father and stepmother in Louisiana from that time until December, 1996, when she traveled to Massachusetts to visit her mother. During her visit, Jessica told her mother of a number of instances when her stepmother had abused her. As a result, Patricia filed a complaint with the Massachusetts court seeking an emergency temporary order of custody as well as permanent custody of Jessica. As changed circumstances, Patricia alleged that Jessica now wanted to live with her mother, that she was being physically abused in her home in Louisiana, and that she was now "failing in school." Patricia also claimed that John was no longer a fit parent because he allowed Jessica to be abused by his new wife and that she, Patricia, would be better able to provide for the primary care of her daughter. John filed a motion to dismiss the complaint claiming that the Massachusetts court lacked subject matter jurisdiction because Louisiana was Jessica's "home state" under both the Massachusetts Child Custody Jurisdiction Act (MCCJA) (G. L. c. 209B), and the Federal Parental Kidnapping Prevention Act (PKPA) (28 U.S.C. 1738A [1994]). Patricia argued that Massachusetts had thepower to issue the temporary order under the continuing jurisdiction provision of the PKPA, because she has been a resident of Massachusetts since the court issued the original order. She claimed that the PKPA preempted contrary provisions of the MCCJA, and that G. L. c. 223A, 3 (h), conferred jurisdiction on Massachusetts courts consistent with the PKPA. She also argued that, in any event, 2 (a) (3) of the MCCJA conferred jurisdiction on the Massachusetts court to issue emergency custody orders. The judge denied John's motion on December 27, 1996, and entered an order of temporary custody to be reviewed on June 9, 1997. Appellant father sought review of a judgment from the Supreme Judicial Court for the County of Suffolk (Massachusetts), which denied his motion to dismiss appellee mother's complaint for modification of custody. Appellant claimed that Massachusetts lacked subject matter jurisdiction.
Whether the Probate and Family Court (Massachusetts court) has subject matter jurisdiction over the mother's complaint for modification of custody?
The Court finds that the Massachusetts court had jurisdiction to enter a temporary order granting Patricia custody of Jessica, because there was evidence from which the judge could conclude that Jessica was at risk of abuse in Louisiana. Massachusetts continuing jurisdiction in this case is predicated on its having jurisdiction under its own laws. Because Massachusetts laws limit its authority to entering temporaryorders as it deems necessary, any order that goes beyond that is not consistent with the PKPA, and is therefore precluded by the PKPA. Under the PKPA, a State that issues an original custody order consistent with the provisions of the PKPA will have continuing jurisdiction if one party still resides in the State, and if the State continues to have jurisdiction over the matter under its own laws. In this case, the first requirement for continuing jurisdiction is satisfied because Patricia has continued to reside in Massachusetts since the modified custody order was issued in June, 1993. Now we must determine whether Massachusetts has subject matter jurisdiction over this custody proceeding under its own law. In this case, Jessica had resided with her father in Louisiana for more than forty consecutive months. She had been in Massachusetts with her mother for less than one month before the complaint for modification was filed. Therefore, Massachusetts was not Jessica's "home state" on the date of the filing of the complaint for modification, and it cannot assert jurisdiction under 2 (a) (1). More over here, it appears that Louisiana would have "home state" jurisdiction. Indeed, the Louisiana court issued a temporary order giving John physical custody of Jessica. Accordingly, there is no basis for Massachusetts to exercise jurisdiction under 2 (a) (2).re, it appears that Louisiana would have "home state" jurisdiction. Indeed, the Louisiana court issued a temporary order giving John physical custody of Jessica. Accordingly, there is no basis for Massachusetts to exercise jurisdiction under 2 (a) (2). Therefore, the Massachusetts court cannot exercise appropriate forum jurisdiction under G. L. c. 209B, 2 (a) (4).
At the time the complaint for modification was filed, the Massachusetts court had emergency jurisdiction under G. L. c. 209B, 2 (a) (3) (ii), to issue temporary orders designed to effectuate Louisiana's jurisdiction but keep Jessica in her mother's care until the Louisiana court ordered otherwise.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
Massachusetts Jurisdiction Temporary Child Custody Evidence Emergency Permanent Custody Lawyers Attorneys
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