subject: Massachusetts Temporary Order Department Social Services Child Custody Visitation Lawyers Attorneys [print this page] GARY A. ELLIS v. DELORES B. ELLIS
Supreme Judicial Court of Massachusetts
March 4, 1992, Argued
August 13, 1992
The parties were married on January 23, 1988. The defendant mother gave birth one month later. The child is named after the plaintiff's grandfather. The plaintiff was present at the birth and is named as the father on the child's birth certificate.
However, the parties stipulated that the plaintiff is not the child's biological father and, in fact, the plaintiff did not know the defendant at the probable time of conception. A judge in the Probate and Family Court Department granted the plaintiff a divorce nisi, and temporarily ordered that the Department of Social Services would take legal custody of the defendant mother's child.
Whether the judge had the authority to award child custody or visitation to the former husband, who had arguably established a bond with the child in the years since its birth?
General Laws c. 215, 13 (1990), provides: "A judge of the probate court by whom a case or matter is heard for final determination may reserve and report the evidence and all questions of law therein for consideration of the appeals court, and thereupon like proceedings shall be had as upon appeal. And if, upon making an interlocutory judgment, decree or order, he is of opinion that it so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the appeals court, he may report the question for that purpose, and stay all further proceedings except such as are necessaryto preserve the rights of the parties. The judge did not rely on the second sentence of 13. His only interlocutory order, awarding temporary custody of the child to the Department of Social Services, is not an order that so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the appeals court. The decision to give temporary custody to the department had nothing to do with whether the judge can ultimately award custody to the plaintiff. The judge appears to have relied on the first sentence of 13, which "provides for a report of an entire case in such form that 'this court can enter or order the entry of a final decree disposing of the case.'" The judge reported some facts and a question, but he did not report the entire case in a form that permits this court to order the entry of a final decree. Numerous facts, critical to a proper determination of a final decree, such as the defendant's parental fitness and the child's needs, have not been established, the report did not meet the criteria set forth in Mass. Gen. Laws ch. 215, 13 (1990) and thus was not authorized. The court found that the temporary custody order did not qualify as an interlocutory order that so affected the merits of the controversy that the matter ought to be determined by an appellate court before further proceedings. Further, the court found that the report did not contain sufficient facts, such as the former wife's parental fitness and the needs of the child, to enable it to order the entry of a final decree.
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 Temporary Order Department Social Services Child Custody Visitation Lawyers Attorneys
By: Atchuthan Sriskandarajah
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