Are in Another:
How to Get Them Back
Although this is a decision by the trial court,
your brief can have the same outline:
it contains what the court wants to know.
Of course, substitute your own proceedings and
your own for those in the decision below.
COUNTY, ss. PROBATE & FAMILY COURT
Docket No. ________________
|FINDINGS OF FACT AND
This case came before the Court for an evidentiary hearing on March 2, 2000. The sole issue presently before the Court is whether or not Massachusetts will exercise jurisdiction over the custody dispute between the Plaintiff father and the Defendant mother. Present were FATHER'S NAME (hereinafter "Father"); Attorney XXXXX XXXXX, the Father's attorney; MOTHER'S NAME (hereinafter "Mother"); and Attorney YYYYY YYYYY, the Mother's attorney.
The parties entered the following joint exhibits into
In addition to the joint exhibits, the Mother introduced three pictures of the exterior and interior of the house located at ADDRESS IN SECOND STATE, where she and the minor child have resided with her mother since October 1, 1999.
Three witnesses testified at the trial: the Father, the Mother, and FRIEND'S NAME, a friend of the Mother. The Mother called Ms. FRIEND as her witness.
In March, 1997, the parties met in SECOND STATE while the Father, a Massachusetts domiciliary, was on vacation. In June or July, 1997, the Mother moved from SECOND STATE to Massachusetts to live with the Father at his residence, FATHER'S ADDRESS IN FATHER'S STATE. The Father's parents own this home, and they live nearby.
On MONTH 4, 1999, the Mother gave birth to a daughter, CHILD'S FULL NAME (hereinafter "Child"), at Anna Jaques Hospital in Newburyport, Massachusetts. The Father and the Mother are the biological parents of the Child. The Mother and the Child lived with the Father until October 1, 1999, at which time the Mother, with the assistance of her mother, removed the Child from the Commonwealth of Massachusetts to the State of SECOND STATE.
III. PROCEDURAL HISTORY
1. On September 13, 1999, the Father filed a Complaint for Paternity in Massachusetts, along with a Motion "to Keep my child in the State of Massachusetts."
2. On October 1, 1999, the Mother removed the Child from Massachusetts to SECOND STATE.
3. On October 4, 1999, the Father sought and received from the HHHHHHHHH District Court an Ex-Parte Restraining Order against the Mother, which included an Order giving temporary custody of the Child to the Father. The HHHHHHHHH District Court extended the Order to October 7, 1999, and then later to October 21,1999.
4. On October 14, 1999, the Mother filed a Complaint for Paternity, Custody and Support in the VVVVVVVV County Circuit Court in SECOND STATE. On that same day, the Mother's attorney, Leonard R. Ross, Esq., certified that a true and correct copy of the Mother's Complaint had been provided to the Father by personal service on October 14, 1999.
5. On October 20, 1999, the Father, through counsel, filed a Motion in Volusia County to abate or dismiss the Mother's Complaint for Paternity, Custody and Support.
6. On October 21, 1999, the HHHHHHHHH District Court extended the Father's restraining order, leaving custody of the Child with the Father until November 5, 1999. The Mother still could not be found to be served.
7. On October 26, 1999, the Volusia County Circuit Court allowed the Father's Motion for an Injunction, and entered a Temporary Emergency Order enjoining the Mother from removing CHILD'S FULL NAME from Volusia County, without prejudice to the Mother's ability to apply to vacate or modify the injunction.
8. On October 29, 1999, the Mother was served in SECOND STATE with a copy of the Domestic Relations Summons issued by the EEEEE Division of the Massachusetts Probate and Family Court.
9. On November 3, 1999, the Mother was served in SECOND STATE by Deputy Crabtree of Volusia County, with a Massachusetts restraining order issued by the HHHHHHHHH District Court, wherein the Court gave custody of the Child to the Father.
10. On November 4, 1999, the SECOND STATE court entered an interim order that the Child temporarily remain in the custody of the Mother, that the Child remain in Volusia County, that the Father have visitation with the Child, that the parties participate in mediation, and that the court reserves and abates all issues raised by the parties, including jurisdiction.
11. On November 5, 1999, the HHHHHHHHH District Court held a hearing on the issue of the temporary restraining order. The Mother appeared and argued against the continuance of the restraining order, asserting that there was no present danger to the Father. The Court continued the restraining order, leaving custody of the Child with the Father until November 17,1999.
12. On November 17, 1999, the HHHHHHHHH District Court extended the restraining order against the Mother to November 19, 1999, in order to allow the Court to take the issue under advisement.
13. On November 19, 1999, the HHHHHHHHH District Court extended the restraining order a final time until December 10, 1999.
14. On November 29, 1999, the EEEEE Division of the Probate and Family Court (Manzi, J.) held a hearing on the Father's Motion to Amend Complaint for Paternity to include a prayer for custody. Attorney Stults filed a special appearance for the Mother, as well as the Mother's Objection to the Motion to Modify the Complaint, asserting a lack of jurisdiction by the Court. The Court would not entertain the Mother's opposition Motion, as she did not provide the Father with proper notice. The Court allowed the Father's Motion to Amend the Complaint for Paternity to add a prayer for custody.
15. On December 29, the Father filed a Motion for Emergency Custody.
16. January 24, 2000, the EEEEE County Probate and Family
after conferring with Judge Foxman of the Volusia County Circuit Court,
that an evidentiary hearing be held in Massachusetts to determine which
court should exercise jurisdiction. It was marked for a four (4) hour
within forty-five (45) days.
17. The Father currently lives at 115 Oxford Avenue, HHHHHHHHH, Massachusetts. The Father'; parents own this house, and they live nearby.
18. The Mother and the Child currently live rent-free at MOTHER'S ADDRESS, SECOND STATE, the home of the Mother's mother. Each individual has her own room. The maternal grandmother helps with the care of the Child.
19. The Father currently has relatives and friends in both Massachusetts and SECOND STATE. The Mother currently has no relatives in Massachusetts, however she does have some friends in the state.
20. The parties met in SECOND STATE in March, 1997. In June or July, 1997, the Mother moved from her residence in SECOND STATE to Massachusetts to be with the Father, and the two resided at 115 Oxford Avenue, HHHHHHHHH, Massachusetts.
21. The Father was employed at Compaq from the time the-parties met until September 29, 1999, when he voluntarily left that position. The Father is now self-employed as a machine fabricator and works out of a shop in his garage.
22. The Mother was employed at Merck Company, a pharmaceutical company, from on or about MONTH II, 1997, until her departure from Massachusetts on October 1, 1999. She was out on disability when she left Massachusetts. During the beginning of her employment at Merck, the Mother was responsible for filling prescriptions in the drug room. Some time in 1998, the Mother was promoted to the records room where she was responsible for inputting information.
23. The Father alleges that the Mother had access at her job to pain killers and often stole from her employer. The Mother testified that she had no access to drugs during her employment. She asserts that there are scanned bar codes and cameras on employees at all times to monitor any misconduct.
24. On MONTH 4, 1999, the Mother gave birth to a daughter, CHILD'S FULL NAME, at Anna Jaques Hospital in Newburyport, Massachusetts. The Father and the Mother are the biological parents of the Child.
25. The Father alleges that the Mother was unable to properly care for the Child. He also alleges that her drug usage increased following the Child's birth.
26. The Father claims that he left his employment at Compaq in order to be home to help the Mother care for the Child. The Father further asserts that he had frequently received phone calls at work from the Mother demanding that he come home because she was having trouble with the Child.
27. The parties had many verbal arguments during the course of their relationship. The Father testified that their relationship was unpredictable, as he never knew what kind of mood the Mother would be in when he came home from work.
28. During the course of their relationship, there was occasional physical violence betweer the parties. In July, 1998, and in MONTH, 1999, the parties had physical altercations which resulted in shattered plexiglass doors and cuts and bruises to both parties. The parties never involved the police during these incidents.
29. The Father alleges that the Mother is in poor health. She saw a number of doctors in Massachusetts, allegedly switching doctors when she was unhappy with the doctors' recommendations. She was admitted to the emergency room on a number of occasions, after consistently complaining of bodily aches and pains. On one visit to the emergency room, the Mother was admitted and had surgery.
30. The Father alleges that the Mother is addicted to pain killers.
31. On September 10, 1999, the Mother allegedly approached the Father to have a conversation. The Mother indicated that she was leaving Massachusetts and taking the Child with her to SECOND STATE.
32. The Father filed a Complaint for Paternity on September 13, 1999, allegedly due to the Mother's statement that she was taking the Child out of the state without his consent. The Father feared that he was not going to see his daughter again.
33. On October 1, 1999, the Mother allegedly informed the Father that she was going on a day trip to Newburyport with the maternal grandmother and the Child. However, the Mother never returned from this trip. Later, the Mother called her friend, FRIEND'S NAME. and asked her to tell the Father that the Child was safe and that she and the Child would not be returning to Massachusetts.
34. The Child lived in Massachusetts from her birth (MONTH 4, 1999) until her removal by the Mother, without the Father's consent, to SECOND STATE on October 1, 1999.
35. On October 4, 1999, the Father sought the help of the courts in order to get his daughter back. Due to his fear for the safety and welfare of his daughter, the Father requested and obtained a restraining order. The Father was not represented by counsel at this time. The District Court issued a restraining order, and included an order that custody of the Child be awarded to the Father.
36. The Father returned to Court approximately five times regarding the restraining order and custody order. The District Court continued the orders each of the five times. The order expired on December 10, 1999.
37. On October 14, 1999, the Mother filed a Complaint for Paternity, Custody and Support in SECOND STATE. The Father participated in the SECOND STATE proceedings, appearing in the SECOND STATE Court on.0ctober 26, .1999 and on October 29, 1999. The Father obtained a temporary emergency injunction preventing the Mother from leaving SECOND STATE with the Child. He also obtained visitation rights and a visitation schedule.
38. The Father enlisted the assistance of an investigation company, investigators and other agencies in SECOND STATE to look into his allegations of abuse of drugs by the Mother and any other abuses which may have taken place while the Mother had custody of the Child. In particular, the Father contacted a SECOND STATE social service agency to report the Mother's alleged abuse of drugs and the possible abuse or neglect of the Child. The Mother testified that a "DFCS" agent came to her home in SECOND STATE for an unexpected visit on a Saturday. She also testified that he looked around the house and then waited until the maternal grandmother returned home with the Child so that he could see the Mother's interaction with the Child. The agent informed the Mother that she could contact the agency ifshe needed anything. The parties are unaware of the results of the investigation.
39. The parties attended a mediation in SECOND STATE. The mediator's report to the Court indicates that the parties are at an impasse.
40. I find that there are doctors in Massachusetts who can provide documentary and oral evidence as to the health of the Mother.
41. I find that there are witnesses in Massachusetts who can testify as to the nature of the relationship between the Father and the Mother and as to the ability of the Mother to care for the Child. Such witnesses could also provide valuable information to the Court as to what would be in the Child's best interests with regard to custody.
42. I find that there are witnesses in Massachusetts who would be able to testify as to the nature and course of the Mother's employment.
43. I find that there are witnesses in Massachusetts who can testify as to the circumstances surrounding the Father's departure from his employment at Compaq.
44. Due to the number of witnesses and the presence of relevant evidence in Massachusetts relating to the conduct of the parties and their fitness as parents, I find that it would be a hardship to transport same to SECOND STATE for a trial on a custody determination.
45. While there is relevant evidence in SECOND STATE, from all of the foregoing I find that there is more evidence available in Massachusetts given the facts and circumstances, and that this Court should accordingly exercise jurisdiction in this case.
V. CONCLUSIONS OF LAW
The Massachusetts Child Custody Jurisdiction Act, M.G.L.
c. 209B, which
is modeled after the Uniform Child Custody Jurisdiction Act, governs
issue ofjurisdiction in child custody determinations in Massachusetts.
The determination ofjurisdiction requires a two step analysis. See Umina
v. Malbica, 27 Mass. App. Ct. 351, 355-60 (1989) quoting Orchard
v. Orchard, 43 Mass. App. Ct. 775, 780 (1997). The first step is to
determine if the court may exercise jurisdiction at all. M.G.L. c.
§ 2 (1998 ed.). If the court may exercise jurisdiction; the second
step is to determine whether or not the court should exercise
or defer to a more convenient forum. M.G.L. c. 209B, § 7 (1998
M.G.L. 209B, § 2
Massachusetts is the home state of the Child. She was born in Massachusetts on MONTH 4, 1999, and lived with the parties at 115 Oxford Avenue, HHHHHHHHH, Massachusetts, until her removal from the state on October 1, 1999. Regardless of whether the Court deems the date of the "commencement of the custody proceeding" as September 13, 1999, the date the Court received the Father's Complaint for Paternity, or October 4, 1999, the date the HHHHH- HHHH District Court granted the Father an ex-parte restraining order, wherein the Court gave temporary custody of the Child to the Father, or October 14, 1999, the date the Mother filed her complaint for paternity, custody and support, or November 29, 1999, the date the EEEEE County Division of the Probate and Family Court granted the Father's motion to amend the complaint for paternity in order to include a prayer for custody, under M.G.L. c. 209B, § l(ii), Massachusetts had been the Child's "home state within six months before the date of the commencement of the proceeding . . ."
The Court must consider whether or not it should defer its jurisdiction to another state which may provide a more appropriate forum. Under M.G.L. c. 209B, §7,
(a) A court which has jurisdiction pursuant to section two may decline to exercise its jurisdiction at any time prior to making a custody determination upon finding that its assumption of jurisdiction would be (i) violative of the purposes of this chapter; or (ii) would be based upon the illegal or otherwise wrongful conduct of a party; or (iii) would constitute an inconvenient forum and that a court of another state would constitute a more convenient forum.
Although the Wife and the Child have contacts and connections with both Massachusetts and SECOND STATE, there exists in Massachusetts more substantial evidence bearing upon the parties' parenting abilities and what would be in the Child's best interest with regard to custody. The Child lived in Massachusetts since birth with both parents for just under two months. During that time, the parties, the Father's relatives, and the parties' friends all likely had the opportunity to witness first hand the nature of the parties' relationship with one another and with the Child. Such witnesses all reside in Massachusetts.
The Mother wrongfully removed the Child to SECOND STATE in October 1999, over six months ago. In that span of time, individuals in SECOND STATE, namely the Mother's mother and her other family members, likely witnessed the Mother's ability to parent the Child, as well as observed the Mother's current health and state of mind. In addition, the Father spent substantial periods of time in SECOND STATE visiting with the Child and. conducting investigations of the Mother. The Mother presumably would like such individuals to testify at the trial, and it would be inconvenient for them to travel to Massachusetts to do so. However, the majority of evidence and the majority of witnesses in this case are in Massachusetts. In light of this, it is clear that Massachusetts is the more appropriate forum.
The Court hereby orders the following:
The Massachusetts Probate and Family Court has home state jurisdiction and is the most appropriate forum to make a determination as to custody, support and visitation with regard to the Child, CHILD'S FULL NAME.
Accordingly, this Court will exercise jurisdiction in this case.