Rhode Island and Massachusetts Child Custody Jurisdiction

   Issues often arise as to what state has jurisdiction over child custody issues.  In a society that has become more and more mobile the issue has become more and more prevalent.  In an effort to codify and/or to unify various state laws the Uniform Child Custody Jurisdictional Enforcement Act (UCCJEA) was enacted.  By and large most states, including Rhode Island and Massachusetts have statutes that parallel, and/or echo the UCCJEA. 

    Frequently, a party has moved out of the original state of jurisdiction with the child or children.  Therefore, the parents of that child or children now reside in two different states.  An issue may thereinafter arise related to visitation, parenting or other child custody related matter.  The question therein becomes which state has jurisdiction to hear that dispute.  In Rhode Island and Massachusetts the statute and case law on this issue is as follows:

I. RHODE ISLAND’S UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

• The Family Court’s subject-matter jurisdiction over child custody decisions is governed by the Uniform Child Custody Jurisdiction Enforcement Act, RIGL §15-14.1  (UCCJEA). The act bestows jurisdiction upon the tribunals of this state through a concept called exclusive, continuing jurisdiction. Sidell v. Sidell, 18 A.3d 499, 504–05 (R.I. 2011)

• “[The] UCCJEA seeks a world in which there is but one order at a time for custody and visitation. Sidell v. Sidell, 18 A.3d 499, 504–05 (R.I. 2011)
  1. Under the UCCJEA the Family Court has subject matter jurisdiction to enter an initial determination if this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
  2. A court of another state does not have jurisdiction under subdivision (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum and:
     • The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
     • Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
  3. All courts having jurisdiction under subdivision (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child; or
  4. No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3) of this subsection.”

Note: “Home State” means the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six (6) months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. RIGL § 15-14.1-2 (7)

     RIGL §15-14.1-13 (a)

• Under the UCCJEA, the Family Court may modify its own child custody order as long as it retains “exclusive, continuing jurisdiction” of the Order. RIGL §15-14.1-14

• Under the UCCJEA, the Family Court retains “exclusive, continuing jurisdiction” until:
  1. a court of this state determines that neither the child, the child’s parents, and any person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
  2. a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”

    RIGL §15-14.1-14

• Under the UCCJEA, if the Family Court loses “exclusive, continuing jurisdiction”, the custody determination can only be modified if the Family Court has jurisdiction to make an initial custody determination. See RIGL §15-14.1-14 (b)

• Under the UCCJEA, the Family Court may modify the custody determination of another states custody orders if the Family Court has jurisdiction to make an initial custody determination and:
  1. the court of the other state determines it no longer has exclusive, continuing jurisdiction or that a court of this state would be a more convenient forum; or
  2. a court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

     RIGL §15-14.1-15

• Under the UCCJEA, temporary emergency jurisdiction can be conferred on the Family Court if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse. See RIGL §15-14.1-16

• Under the UCCJEA, the Family Court may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. Before determining whether Rhode Island is an inconvenient forum, the Family Court is required to consider whether it is appropriate for a court of another state to exercise jurisdiction and shall consider all relevant factors, including:
  1. whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
  2. the length of time the child has resided outside this state;
  3. the distance between the court in this state and the court in the state that would assume jurisdiction;
  4. the relative financial circumstances of the parties;
  5. any agreement of the parties as to which state should assume jurisdiction;
  6. the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
  7. the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
  8. the familiarity of the court of each state with the facts and issues in the pending litigation.

        See RIGL §15-14.1-19; See also Hogan v. McAndrew, 131 A.3d 717 (2016): (Before declining jurisdiction over child custody dispute i on ground of forum non conveniens, after weighing statutory factors, Family Court  was required to find that Rhode Island was significantly inconvenient and that ends of justice would be better served if action were brought in another forum.)

II. MASSACHUSETTS’ UNIFORM CHILD CUSTODY JURISDICTION ACT

• In Massachusetts, the Probate and Family Court’s subject-matter jurisdiction over child custody decisions is governed by the Uniform Child Custody Act, MGL c.209B §§ 1 to 14

• The Uniform Child Custody Jurisdiction Act, is a legislative attempt to avoid jurisdictional competition and to promote interstate cooperation in resolving child custody disputes. See In re Custody of Victoria, 473 Mass. 64, 39 N.E.3d 418 (2015) (purposes of Massachusetts and uniform acts are similar: both encourage cooperation and avoidance of jurisdictional conflict between courts of different States in order to protect child’s welfare when litigating custody matters); Umina v. Malbica, 27 Mass. App. Ct. 351, 538 N.E.2d 53 (1989) (purpose of Massachusetts and Uniform Acts is to “discourage dragging children into the courts of whatever State they may happen to be in at a particular moment and to discourage competition among the States”).

• Under the Act, determination of jurisdiction requires a two-step analysis: first the court must determine whether it has the power to exercise jurisdiction in a custody proceeding, and second, if it does, whether it should exercise that power under the statutory standards. Custody of Brandon, 407 Mass. 1, 551 N.E.2d 506 (1990)

• There are four jurisdictional bases under the Massachusetts Child Custody Jurisdiction Act : “home state”; “significant connection“, “emergency,” and “only state available” jurisdiction. See MGL c. 209B § 2(a); See also § 8:245.Child Custody Jurisdiction Act—Generally, 14B Mass. Prac., Summary Of Basic Law § 8:245 (5th ed.)

• “Home State” jurisdiction: Massachusetts has home state jurisdiction if (1) it was the child’s home state when the custody determination began, or (2) if it was the child’s home state within six months of commencement of the action and one parent or person acting as a parent continues to live in Massachusetts. MGL c. 209B § 2(a)(1)

• “Significant Connection” jurisdiction: Massachusetts has significant connection jurisdiction if it appears that the child does not have a “home state” and “it is in the best interest of the child that a court of the commonwealth assume jurisdiction because:
  1. the child and his or her parents, or the child and at least one contestant, have a significant connection with the commonwealth, and
  2. there is available in the commonwealth substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

      MGL c. 209B § 2(a)(2)

• “Emergency” jurisdiction: Massachusetts has emergency jurisdiction if “the child is physically present in the commonwealth, and
  1. the child has been abandoned, or
  2. it is necessary in an emergency to protect the child from abuse or neglect or for other good cause shown

     MGL c. 209B § 2(a)(3)

      A court exercising emergency jurisdiction may only by enter such temporary order or orders as it deems necessary unless the court of the other state has declined to exercise jurisdiction, has stayed its proceedings or has otherwise deferred to the jurisdiction of a court of the commonwealth. MGL c. 209B § 2(a)(3)

• “Only State Available” jurisdiction: Massachusetts has only state available jurisdiction if it appears that no other state would have Home State jurisdiction, Significant Connection jurisdiction, and/or Emergency Jurisdiction, or another state has declined to exercise jurisdiction on the ground that the commonwealth is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that a court of the commonwealth assume jurisdiction. See MGL c. 209B § 2(a)(4)

• Under the Uniform Child Custody Jurisdiction Act, the Probate and Family Court may not modify the custody determination of another states custody orders if:
  1. it appears to the court of the commonwealth that the court which made the custody determination does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this chapter or that such court has declined to assume jurisdiction to modify its determination and
  2. a court of the commonwealth now has jurisdiction pursuant to this chapter.

     MGL c. 209B § 2(e)

      Accordingly, the critical issue is whether or not the child or children has resided in another state (other than the state of original jurisdiction) for at least six (6) months.  There are certain exceptions to this rule but that is the critical timeframe to look towards.  Sometimes both the original state of jurisdiction and the state that the child is presently residing in (the new state) have significant contacts with the children.  If that is the case an analysis of which of the two states and therefore which of the two Courts is better apt or more suitable to litigate the issue.  That analysis is one that involves a lot of common sense, i.e., where does the child go to school, daycare, the location of the child’s pediatrician, ties to the community are in what town, etc., etc.

N.B. Issues of child support are not part of the UCCJEA and jurisdictional rules on child support are different than those related to custody/parenting time.