MASSACHUSETTS COURTS DO NOT MAINTAIN EXCLUSIVE & CONTINUING JURISDICTION OVER ITS OWN CUSTODY AND PARENTING DECISIONS
Under Mass R. Civ. P. § 12(b)(6), the Court must dismiss a complaint if it does not have jurisdiction over the subject matter. In Massachusetts this can even include cases in which the Court entered an initial judgment addressing custody and parenting time in a prior matter. Massachusetts adopted and continues to subscribe to the Uniform Custody Jurisdiction Act (UCCJA). Under the act, Massachusetts can make a child custody determination if it is the home state of the child on the date of the commencement of the proceeding, or if it was the home state of the child within six months before the commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in the state. If the child and a parent move to and live in another state for over six months prior to the commencement of a custody complaint, jurisdiction transfers to the new home state of the child. So even if a party is divorced in Massachusetts the Commonwealth could lose the ability to address, through complaints for modification and complaints for contempt, future issues of custody and parenting time. Whether one believes this is fair or not, one thing is clear, Massachusetts stands alone when it comes to the issue of maintaining jurisdiction.
As of July 1, 2011, forty-nine (49) states in the U.S. have adopted the Uniform Custody Jurisdiction & Enforcement Act (UCCJEA) with the lone exception being the Commonwealth of Massachusetts. Under the UCCJEA a state can maintain exclusive, continuing jurisdiction over its initial custody determination, even if he child has lived out of state for over six months unless: 1) the state determines that neither the child, the child’s parents, nor any person acting as a parent has a significant connection to the state and that substantial evidence is no longer available in the state concerning the child’s care, protection, training, and personal relationships or 2) that the state court or a court of another state determines that the child, the child’s parents, and any person acting as a parent does not presently reside in the state that initially made the child custody order.
It is unlikely that Massachusetts will indefinitely remain as the only state to not keep exclusive jurisdiction over its initial custody decisions. However, until such time as the legislature amends the UCCJA statute this limit upon the Court’s power will continue.