subject: Massachusetts Nonemergency Child Custody Care Protection Proceeding Federal Parental Kidnapping Prevention Lawyers Attorneys [print this page] CARE AND PROTECTION OF VIVIAN.
SUPREME JUDICIAL COURT OF MASSACHUSETTS
May 1, 1995, Argued
July 26, 1995, Decided
In January, 1994, apparently in response to the father's petition to modify the custody order, a judge of a Utah court awarded temporary custody of Vivian to her father. On February 3, 1994, after consultation with the Utah judge, a judge in the Plymouth County Probate and Family Court dismissed the mother's complaint for modification of the Utah divorce decree on the ground that the PKPA required the judge to defer to the Utah court's jurisdiction. In response to a report by Vivian's psychotherapist that Vivian's father had touched her inappropriately. The Department of Social Services(department) filed a petition for the care and protection of Vivian in the Wareham District Court. A judge awarded temporary custody of Vivian to the department. Subsequently, the judge denied the father's motion to dismiss the care and protection proceeding. In June, 1994, the department declined to permit Vivian to travel to Utah in connection with the custody contest pending there. On June 14, 1994, the father filed his complaint in this proceeding seeking an order that the department immediately present Vivian to the Utah court. His request was based on his assertion that the Wareham District Court had no jurisdiction to entertain the nonemergency care and protection proceeding.
The Judge concluded that the care and protection proceeding delayed resolution of the custody dispute, interfered with the Utah court's efforts by withholding a witness considered essential, obstructed cooperation between Massachusetts and Utah courts, and frustrated the over-all purpose of the PKPA to encourage comity among the States. He saw no reason to believe that Utah courts and social agencies could not deal adequately with the allegations of abuse. The single justice ordered that the Wareham District Court direct Vivian to appear in the Utah court. Although the single justice's order made moot the issue of the District Court's jurisdiction, he regarded the question as important and capable of repetition and accordingly reported the jurisdictional question to the full court
Whether the Federal Kidnapping Prevention Act, (PKPA)28 U.S.C. 1738A (1988),preempts a care and protection proceeding, initiated in the context of a lengthy custody dispute, where proceedings for a modification of custody are pending in another State which has jurisdiction over the question of a child's custody?
Opinions concluding that PKPA preempts care and protection proceedings of the type involved here are more persuasive. The purposes of the PKPA would be undercut if we were to permit a State, often with the active participation of one of a child's parents, to initiate nonemergency proceedings that could countermand an outstanding custody order of a State that has jurisdiction of the child custody matter. It was this same reasoning that led to this court's conclusion in Archambault v. Archambault, 407 Mass. 559, 555 N.E.2d 201 (1990). This Court held that the PKPA implicitly preempted a Massachusetts amendment to G. L. c. 209B, 11 (b), that sought to impose a Massachusetts limitation that no child be compelled to appear in a child custody proceeding in another State, if a Massachusetts judge found probable cause to believe that the child may be placed in jeopardy or exposed to risk of harm by a return to the other State. We said that the hearing with its attendant delay itself frustrated the purposes of the PKPA, moreover, that the Massachusetts amendment would frustrate the PKPA's general goal of encouraging comity between States. The court determined that under the PKPA and the circumstances of the present case, a Massachusetts court could not decide a nonemergency care and protection proceeding. The court reasoned that the care and protection proceeding was not a custody determination for the purposes of the PKPA and was preempted under the PKPA.
The court determined that a Massachusetts court could not decide a nonemergency care and protection proceeding regarding a child when custody proceedings were pending in another state.
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 Nonemergency Child Custody Care Protection Proceeding Federal Parental Kidnapping Prevention Lawyers Attorneys
By: Atchuthan Sriskandarajah
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