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
3. Child Law 3.1 Choice of Jurisdiction
the family law arena. Parties participate in these processes alone or with their attorneys and can expect to spend anywhere between half a day to multiple days caucusing and negotiating in order to reach an agreement. If an agreement is struck, the parties will often incorporate the terms into a full-fledged separa - tion agreement that eventually is filed with the Probate and Family Court. After that, assuming the proper procedure is met, it becomes a judg - ment of divorce that is enforceable by the court. It is important to note that mediation and concili - ation processes are confidential and voluntary. Parties are not compelled to reach an agreement and are bound not to disclose offers or settle - ment postures in court should the conciliation or mediation process fail. This promotes a candid discussion whereby parties are free to negoti - ate without concern that their settlement pos - ture could later be used against them in a court process. For parties who are unable to reach an agree - ment, arbitration may be an option. This is a pri - vate process where the parties agree that a neu - tral third party (again, perhaps a retired judge or seasoned practitioner) will adjudicate the case, essentially replacing the judge, and issue bind - ing 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 arbi - trators, as enshrined in the common law and in statutory provisions in Massachusetts General Law, Chapter 251, Section 12.
All states in the United States except Mas - sachusetts have adopted some form of the UCCJEA. The UCCJEA was enacted in 1997 to replace the Uniform Child Custody Jurisdiction Act (UCCJA). While Massachusetts still applies the UCCJA when determining jurisdiction over child custody matters, as of 10 October 2024, the Massachusetts Senate has approved a bill adopting a form of the UCCJEA and referred the bill for approval by the House of Repre - sentatives. Legal concepts such as domicile, residence or nationality are not the determining factor when determining jurisdiction over a child custody case. In Massachusetts, 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. There are a few exceptions to the “home state” requirement where a Massachusetts court can consider exercising jurisdiction in a child cus - tody case if the “home state” requirement is not met. • Significant connection – if there is a signifi - cant 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 pre -
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