USA – MASSACHUSETTS Law and Practice Contributed by: Steven E Gurdin, Barbara L Drury, Carlos A Maycotte, Stephen A MacKenzie and Kelly A Schwartz, Fitch Law Partners LLP
posture could later be used against them in a court process. For parties who are unable to reach an agreement, arbitration may be an option. This is a private pro ‑ cess where the parties agree that a neutral third party (again, perhaps a retired judge or seasoned practi ‑ tioner) will adjudicate the case, essentially replacing the judge, and issue binding decisions that later get incorporated into a court judgment. Arbitration can often be more expeditious than remaining in the court system and can sometimes be less expensive. Parties, however, should consider that an arbitrator’s award is much more difficult to appeal than a court judgment, given judicial deference to arbitrators, as enshrined in the common law and in statutory provisions in Mas ‑ sachusetts General Law, Chapter 251, Section 12. All states in the United States except Massachu ‑ setts have adopted some form of the UCCJEA. The UCCJEA was enacted in 1997 to replace the Uniform Child Custody Jurisdiction Act (UCCJA). While Mas ‑ sachusetts still applies the UCCJA when determining jurisdiction over child custody matters, as of 10 Octo ‑ ber 2024, the Massachusetts Senate has approved a bill adopting a form of the UCCJEA and referred the bill for approval by the House of Representatives. Legal concepts such as domicile, residence or nation ‑ ality are not the determining factor when determining jurisdiction over a child custody case. In Massachu ‑ setts, Massachusetts General Law, Chapter 209B (the “Massachusetts Child Custody Jurisdiction Act”) is applicable, which adopted the UCCJA. Generally, for Massachusetts to have jurisdiction to hear a child custody case, the child’s “home state” must be Massachusetts. “Home state” is the state where the child lived with a parent or a person acting as a parent for at least six months immediately before the child custody action is filed. 3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings There are a few exceptions to the “home state” requirement where a Massachusetts court can con ‑
sider exercising jurisdiction in a child custody case if the “home state” requirement is not met. • Significant connection – if there is a significant connection between Massachusetts, the child and at least one parent, or the child and at least one contestant, then Massachusetts may consider exercising jurisdiction. In this case, there must be substantial evidence in Massachusetts concerning the child’s present or future care, protection, train ‑ ing, and personal relationships. • Emergency – in an emergency where the child is physically in Massachusetts and the child has been abandoned or it is necessary in an emergency to protect the child from abuse or mistreatment. • More appropriate forum – Massachusetts is a more appropriate forum. This situation can arise when no other state has home state status, significant con ‑ nection or emergency jurisdiction, or when another state declines to exercise jurisdiction because Massachusetts is a more appropriate forum. 3.2 Living/Contact Arrangements and Child Maintenance In a divorce, the Massachusetts Probate and Family Court will make determinations as to the children’s legal and physical custody. Legal custody relates to decisions regarding a child’s health, education, and religious upbringing, whereas physical custody is where the child lives day-to-day. If divorcing parties cannot agree on custodial arrangements, including a parenting plan for the children, either party can seek temporary orders from the court related to legal cus ‑ tody or physical custody pending a final adjudication. On a temporary orders basis in a divorce, but not a trial, there is generally a presumption of shared legal custody. Whether on a motion for temporary orders or at a trial, a court’s primary consideration for child custody determinations in a divorce is the best inter ‑ ests of the child(ren). In general, the court will seek to support and preserve each parent’s relationship with the child(ren) during and following a divorce. The court has significant discretion in making custody determi ‑ nations. The Massachusetts Probate and Family Court also has jurisdiction over child support orders. It is the responsibility of the divorcing parties, not the child,
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