Massachusetts Interstate Child Custody
Massachusetts interstate child custody applications are governed by the Uniformed Child Custody Jurisdiction Act (“UCCJA") Mass. Gen. Laws ch. 209B.
The UCCJA controls any Petition for custody of a child where a custody determination is sought by “either initial or modification judgment". That is to say, whether you are initiating an application for custody or seeking to modify an existing judgment that granted custody of the child through divorce, adoption, etc. The principal distinction between a UCCJA petition and a direct application for custody to the local county Family & Probate court is that either the child or the party applying or opposing the custody is in different states. Any court of competent jurisdiction to make a custody award may hear the UCCJA petition.
The principal hurdle to overcome in a UCCJA application is JURISDICTION: Does the court where the petition is being heard have jurisdiction over the child, and if not who does. This arises most often where the child has been removed or relocated out of the “home state", defined as “the state in which the child immediately preceding the date of commencement of the custody proceeding resided with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned". The person making the application may be seeking a judgment in Massachusetts because they have brought the child into the Commonwealth, or they may be seeking a determination in Massachusetts from a “foreign" jurisdiction, effectively seeking the return of the child to the other states.
Jurisdiction over the child is most commonly established when: the commonwealth (a) is the home state of the child on the commencement of the custody proceeding, or (b) had been the child's home state within six months before the date of the commencement of the proceeding and the child is absent from the commonwealth because of his or her removal or retention by a person claiming his or her custody or for other reasons, and a parent or person acting as parent continues to reside in the commonwealth; (c) the child is physically present in the commonwealth and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child from abuse or neglect or for other good cause shown.
Massachusetts will NOT accept jurisdiction where a custody proceeding has been commenced and is pending in another jurisdiction.
The UCCJA application must be accompanied by an affidavit from any party invoking the court’s jurisdiction. The UCCJA specifies with particularity the information that must be included in the affidavit (See § 3 of the UCCJA). The affidavit must accompany the initial pleading, along with certified copies of any documents in prior relevant proceeding (divorce, prior custody awards, state actions involving the parent/child), if any.
Service of the initiating papers must be made on any interested party, as prescribed by the Court, and the court may require the appearance of same. The UCCJA also addresses the allocation of costs for transportation of the child and the parties, if they and/or the child are outside of Massachusetts.
The Commonwealth will contact the court of the foreign jurisdiction and they will conference and actively exchange information with the out of state court. A custody judgment from a foreign state shall be treated in the same manner as a custody judgment of a court of the Commonwealth until and unless it is modified by our courts.