USA – MASSACHUSETTS Law and Practice Contributed by: Mary H. Schmidt, Rachel A. Deering, Hannah R. Zukoff and Mariah G. Tappan, Verrill Dana, LLP
3. Child Abduction 3.1 Legality
Section 26A. Under the statute, a relative who, without lawful authority, takes a child from the child’s lawful custodian and removes or retains the child outside Massachusetts is subject to a fine of up to USD5,000, imprisonment in state prison for up to five years, or both. In cases involving an international removal, the avail - able remedies differ depending on whether the des - tination country is a Contracting State to the Hague Convention on the Civil Aspects of International Child Abduction. The threshold question, therefore, is whether the child has been taken to a Hague Conven - tion country. The United States is a Contracting State, and the Convention is implemented domestically through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. Section 9001 et seq. Accord - ingly, where a child has been wrongfully removed from another Contracting State to Massachusetts, the left- behind parent may commence proceedings in the appropriate Massachusetts court seeking the child’s return under ICARA. Conversely, where a child has been wrongfully removed from Massachusetts to another Contracting State, the left-behind parent may seek relief under the Hague Convention by submitting an application to the Central Authority in the requested State or, where per - mitted, by commencing return proceedings directly before the appropriate court. If the child has been taken to a country that is not a Contracting State to the Hague Convention, the Con - vention’s return mechanism is unavailable. In that circumstance, the left-behind parent must generally pursue relief through the domestic courts of the coun - try where the child is located, subject to that coun - try’s laws governing custody, recognition of foreign judgments, and applicable principles of international judicial co-operation. The left-behind parent may also seek assistance from the US Department of State, although it has no authority to compel the child’s return. 3.3 Hague Convention on the Civil Aspects of International Child Abduction The United States is a signatory to the 1980 Hague Convention which is implemented domestically
It is unlawful to permanently remove a minor child from Massachusetts without the consent of the other parent or authorisation from the court. Massachusetts addresses such conduct through two distinct legal frameworks. First, its domestic relations statutes pro - hibit the removal of a child of divorced or separated parents from Massachusetts without either the con - sent of the other parent or a court order under M.G.L. Ch. 208, Section 30. Second, its criminal laws prohibit parental kidnapping by making it a crime for a relative to take or keep a child from the child’s lawful custo - dian without legal authority pursuant to M.G.L. Ch. 265, Section 26A. 3.2 Steps Taken to Return Abducted Children When a child is wrongfully removed from Massachu - setts, the left-behind parent may pursue a range of civil, criminal, and, where applicable, international remedies. From a civil perspective, the governing statute is the Massachusetts Child Custody Jurisdiction Act (MCCJA), M.G.L. Ch. 209B. The MCCJA should not be confused with the Uniform Child Custody Juris - diction Act, which Massachusetts has not adopted, although nearly every other US jurisdiction has. Under the MCCJA, a Massachusetts court retains jurisdiction to determine custody even after a child has been removed from the state, provided Massa - chusetts was the child’s home state within six months before the commencement of the proceeding. The child’s physical presence in Massachusetts is not required. Timing, however, is critical. The six-month period begins to run on the date the child is wrongfully removed. A left-behind parent should therefore promptly file a custody action together with a motion seeking the child’s immediate return in order to pre - serve Massachusetts’ jurisdiction under the MCCJA. From a criminal perspective, the left-behind parent may report the abduction to local law enforcement, which may pursue charges under M.G.L. Ch. 265,
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