Fall 2016: Reported Cases

by Brian McLaughlin, Valerie Qian, Jordana Kershner and Annasophia Salvia

Care and Protection of Vick
July 13, 2016

The Mother appealed from a Juvenile Court’s finding that she was unfit as a parent, and that her unfitness was likely to continue in the future. 

The Department of Children and Families (“DCF”), received three reports filed pursuant to M. G. L. c. 119, § 51A (“51A Reports”), which stated that there were unclean conditions in the Mother’s home, that the Child did not have adequate access to food, and that the Child was exposed to drug abuse. DCF found that the 51A Reports were substantiated, and filed a care and protection petition. The Mother subsequently signed a stipulation with DCF, in which she agreed to maintain a “safe and clean home” and attend to her child’s educational and medical needs in exchange for continued custody of the Child.

Mother failed to meet these conditions by allowing trash and filth to accumulate in her home, actively refusing to participate in DCF services, and leaving the Child with inappropriate caretakers.  Following a trial, the Juvenile Court awarded custody to the Child’s Father. Mother appealed, stating that DCF did not demonstrated a connection between her parenting and harm to the Child, and that the judge conducted a prejudicial analysis and failed to consider the Child’s desire to stay with the Mother.

The Appeals Court affirmed the Juvenile Court’s judgment, suggesting that there was clear and convincing evidence that Mother was an unfit parent. The Court emphasized that it could consider both “the cleanliness of a parent’s home” and a parent’s refusal to engage with DCF when evaluating a parent’s fitness. The Court noted that Mother failed to improve the conditions in her home, and actively refused to help the Child obtain necessary educational services, to the Child’s detriment. The Court also suggested that Mother’s inappropriate childcare choices and erratic behavior in court contributed to her parental unfitness. Finally, while the Court agreed that in general, a judge should consider a Child’s wishes in a care and custody proceeding, it suggested that in this case, the Child’s best interests, safety and health, outweighed that consideration.

Commonwealth v. Lark
July 13, 2016
APC- 15-P-411

The Defendant picked his fiancée's son up from school after the Child got in an altercation with another student. A passerby and the school counselor both saw the Defendant strike the Child repeatedly with enough force to move the car after the Child initially refused to get in the car. The child ran back into the school, and had a scratch over his eye.

The Defendant was convicted of assault and battery, and appealed his conviction, suggesting that he had a parental privilege to strike the Child, and that the Superior Court incorrectly instructed the jury on parental privilege.

The Appeals Court affirmed the Defendant’s conviction. The Court focused its analysis on Commonwealth v. Dorvil, 472 Mass. 1, 13 (2015),  which shields parents from liability for using force against their child provided that the force is reasonable, reasonably related to promoting the child’s welfare, and does not cause lasting “physical harm… gross degradation, or severe mental distress.” The Court noted that the Commonwealth must disprove at least one of those prongs in order to disprove the parental privilege defense.  Here, the Court suggested that striking the Child with enough force to move the Defendant’s vehicle was not reasonable, and was unrelated to the Child’s welfare. The Court further suggested that the Superior Court’s slight deviation from the language of Dorvil was inconsequential where the Court correctly identified the three prongs of the defense.

Pfannenstiehl v. Pfannenstiehl
August 4, 2016
SJC-12031 03

Husband appeals from a divorce judgment in which a Probate and Family Court judge gave the wife 60% of his present interest in a discretionary spendthrift trust, as part of the division of the marital estate under M.G.L. c. 208 §34. The Appeals Court affirmed in a divided opinion. The Supreme Judicial Court, reviewing only the issue of the trust, holds that the present value of the husband’s beneficial interest in the discretionary spendthrift trust is too speculative to be considered a part of the parties’ divisible marital estate in a divorce. His interest may, however, be considered part of his “opportunity . . . for future acquisition of capital assets and income” pursuant to §34.

The parties were married in February 2000 and had two children, a son and a daughter, who at the time of the judgment were aged eleven and eight respectively. Husband filed for divorce in September 2010 and an amended divorce judgment was entered in August 2012. During the marriage the husband’s annual income was approximately $190,000 per year, while the wife brought in $30,100 from part-time work and rental income. Prior to the birth of the parties’ daughter in 2004, who had Down syndrome, the wife had worked in the United States Army Reserves. The judge found that the wife retired early from her position at the Army Reserves because of pressure from her husband and his family after their daughter’s birth. Husband worked at a subsidiary in his father’s corporation. Between 2008 and 2010 when husband filed for divorce, the husband also received regular, monthly distributions from a trust totaling $800,000, which the trial judge found “augmented” the family’s standard of living during the marriage.

The trust in question was set up by husband’s father in 2004 for the benefit of the husband and, at the time of the trial, ten other living descendants of the husband’s father. The class of beneficiaries under the trust was an open class, subject to change as more children, grandchildren or other issue in “any other degree” of husband’s father were born. The husband’s brother – also a beneficiary of the trust – and an attorney were both trustees, and the trust was funded by shares in two for-profit education corporations, life insurance policies and a cash account. The trust’s terms provided that distributions could only be made to its beneficiaries with approval from both trustees, and at their discretion, in equal or unequal amounts to different beneficiaries, for purposes of providing for “the comfortable support, health, maintenance, welfare and education of each or all members of such class.” The trust’s terms also had a spendthrift provision indicating that “neither the principal nor income of any trust created hereunder shall be subject to alienation, pledge, assignment or other anticipation by the person for whom the same is intended, nor to attachment, execution, garnishment or other seizure under any legal, equitable or other process.”

At trial, the judge determined that the present value of the trust was $24,920,217.37 and the husband had a one-eleventh interest, or $2,265,474.31. She further found that the trustees had intentionally stopped making distributions to the husband during the divorce proceedings in order to prevent the wife from receiving these funds. After considering the wife’s contributions to the marital estate and lessened ability to acquire assets and work on a full-time basis, over and against the husband’s “high salary, flexible work hours and beneficiary status in his father’s estate planning,” the trial court determined to give the wife 60% of the husband’s one-eleventh interest ($1,168,794.41) in the trust in twenty-four monthly installments, with interest.

The SJC acknowledges that trial courts have broad discretion in dividing assets under §34 and also in determining whether or not assets fall within the divisible marital estate. It also acknowledges that trial judges are not “bound by traditional concepts of title or property” in determining what assets may be considered part of the marital estate, and certain “intangible interests (even those not within the complete possession or control of their holders)” have also been deemed eligible, in case law, for division under §34 (Baccanti v. Morton, 434 Mass 787, 788 (2001), quoting Lauricella v. Lauricella, 409 Mass. 211, 214 (1991) and as examples Adams v. Adams, 459 Mass. 361, 372-373 (2011); Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-375 (1985); Putnam v. Putnam, 5 Mass. App. Ct. 10, 17 (1977)).

The court then goes on to state that whether a trust belongs to a marital estate depends on whether the party’s interest in the trust is a “fixed and enforceable” property right (D.L. v. G.L., 61 Mass. App. Ct. 488, 499 (2004)) or “too remote or speculative” to be included (id. at 496-497) and turns on the attributes of the specific trust rather “than on principles of general application” (Lauricella v. Lauricella, supra at 216).

Husband’s present interest in the trust is too speculative to be an asset divisible under §34 because a) the trust allows for unequal distributions between different beneficiaries at the trustees’ discretion, b) the class of beneficiaries is “open” and subject to increase or change, and c) the husband has only a speculative right to receive distributions at any time, since the trustees are bound to consider the needs of all of the open class of beneficiaries before they can make distributions.

The court distinguishes this case from Comins v. Comins, 33 Mass. App. Ct. 28, 30-31 (1992), where an interest in a trust that had an “ascertainable standard” by which distributions could be made was included in the marital estate. The Comins trust had only one beneficiary; here, the husband was one of eleven beneficiaries, all of whose standards of living the trustees had to consider before they could make distributions. This is not enough to give the husband an enforceable right to receive distributions.

Furthermore, though the existence of a spendthrift provision does not disqualify a trust from inclusion, the provision is irrelevant here, since the husband never had a right to compel distributions in the first place. Finally, the husband’s remainder interest in the trust is also too remote to be included in the estate, since termination of the trust and distribution of its remainder is unlikely to benefit future beneficiaries to whom the trustees owe an equal fiduciary obligation.

Vacated and remanded.


Adoption of Anisha
August 5, 2016

Mother appeals from a care and protection judgment in which a Juvenile Court judge adjudicated her an unfit parent and terminated her parental rights, and approved adoption of her daughter by her paternal aunt and uncle. At issue is a) whether the court properly denied a motion to dismiss for lack of jurisdiction where a simultaneous petition for guardianship had been filed in Tennessee, b) whether the court properly assumed jurisdiction over the custody action at all, and c) whether the court properly found mother unfit and terminated her parental rights. The Appeals Court holds that the judge properly denied mother’s motion to dismiss while he investigated the jurisdictional issues, properly exercised jurisdiction over the child’s custody action under M.G.L. c. 209B § 2(a)(4) where the competing state declined to assume jurisdiction, and had “overwhelming” reasons to terminate of mother’s parental rights.

Mother had given birth to seven other children, one who had passed away, and six others who had been removed from her in care and protection proceedings in Massachusetts after findings that mother was an “unfit” parent. Anisha (a pseudonym), mother’s eighth child, was born in New Hampshire in November 2013 and tested positive for cocaine upon birth. A mandated reporter from the hospital reported this information to the New Hampshire Department of Children and Families, and a 51A was filed with the Massachusetts Department of Children and Families (“DCF”). DCF sought emergency custody of the child from the Juvenile Court in Boston, but was unable to locate the mother or the child. The judge later found that the mother had taken the children back to Massachusetts and then to some other states in the South, intending eventually to send the child to live with her paternal aunt in St. Kitts, West Indies. During this time, the mother also filed a petition for guardianship (giving guardianship of the child to the paternal aunt) in Tennessee. The child’s father was a resident of Massachusetts, and the judge found that mother has continued to reside in Massachusetts despite her claims that she moved to Georgia in 2013.

After a preliminary hearing on December 30, 2013, at which mother’s counsel and DCF were both present, the trial judge issued, but did not file, a “draft” decision indicating that he would address the question of jurisdiction with a Special Magistrate in the Juvenile Court in Tennessee where the petition for guardianship was pending. The judge denied mother’s motion to dismiss for lack of jurisdiction without prejudice. After a conversation in early January with the Special Magistrate in Tennessee, who declined to assume jurisdiction over the case, the trial judge filed his decision and assumed jurisdiction. Over a two-year period through to trial, DCF’s recommended plan for reunification evolved into a request for adoption by the paternal aunt, which the judge approved. Anisha’s father stipulated to being an unfit parent and was in agreement with the adoption plan.

In affirming the trial judge’s decision to deny mother’s motion to dismiss, the Appeals Court finds that given the complicated questions regarding mother’s location, the child’s location, mother’s apparent attempts to evade DCF and the question of Tennessee’s competing claim for jurisdiction, the judge had ample authority to deny mother’s motion until he could clarify these questions. The trial judge has explicit authority under the Massachusetts Child Custody Jurisdiction Act (“MCCJA,” M.G.L. c. 209B) §7(c), which he referenced in his decision, to confer with the Tennessee court regarding the jurisdictional question. The Appeals Court notes that it is significant that the judge did not issue any custody decisions until he determined whether Massachusetts had jurisdiction.

In affirming the judge’s ultimate assumption of jurisdiction over the case, the Appeals Court finds that jurisdiction is properly assumed under M.G.L. c. 209B § 2(a)(4) or what it terms “[a]ppropriate forum jurisdiction”:

(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), 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.

The Appeals Court affirms the trial judge’s conclusion jurisdiction is not granted by §2(a)(1) of the MCCJA. §2(a)(1) confers jurisdiction on the “home state” of the child where a child has resided for at least six months, but Anisha at the time of the commencement of the proceedings was only one month old. The facts of this case in fact establish that Anisha had no home state at the time of these proceedings.

Rather, the Appeals Court finds the trial judge had “[a]ppropriate forum jurisdiction” under §2(a)(4) because no other states had jurisdiction under §2(a)(1) – (3) and Tennessee had declined jurisdiction, and it was in the best interest of Anisha that Massachusetts assume jurisdiction. The Appeals Court explains that as no separate definition of “best interest” is provided in the body of paragraph §2(a)(4), the definition provided in §2(a)(2) may be applied. It states that “the child and at least one parent must have a 'significant connection' with the Commonwealth, and 'substantial evidence concerning the child's present or future care, protection, training, and personal relationships' must be available here.” M.G.L. c. 209B §2(a)(2). The Appeals Court finds that the judge’s detailed findings of fact indicate that both these requirements are fulfilled. Both parents have significant contacts with Massachusetts as residents, and while the child’s contacts with the state are more limited, she did travel to Massachusetts after she was born, mother had informed the hospital that she and the child were going to “stay” with her sister in Cambridge, and mother had made an appointment for the child at the Cambridge Health Alliance the day mother and child were discharged from the hospital, though mother ultimately never went to that appointment. The second best interest requirement is very clearly fulfilled with the extensive DCF records of mother and her progress, or lack thereof, with the other six children who had been removed from her care.


M.C.D. v. D.E.D.
September 23, 2016
No. 15-9-1537

The Commissioner of Probation (“commissioner”) appealed from an order allowing a defendant’s motion to expunge a restraining order obtained against him by his wife pursuant to M.G.L. c. 208 §209A (“209A.”)  The restraining order was obtained on an ex parte basis by the wife, alleging that her husband had beaten her severely and that she was in fear of him.  The husband is an Assistant City Solicitor for a town in Massachusetts. 

On the hearing after notice a week later, the plaintiff did not appear but an associate of her lawyer appeared on her behalf and said that she was not seeking an extension of the restraining order.  The defendant, who was represented by counsel, claimed to have overwhelming evidence that the alleged beating by the defendant never happened, that he had been at work during the entire time period in question, which could be proven by his office manager’s testimony and videos taken by surveillance cameras outside of his office, and that the plaintiff was an alcoholic who had fallen down at other times in the past.  The trial court responded that there was no need to “get into the evidence” because there was no request to extend the order.  The restraining order was terminated that day. 

Thereafter, the defendant filed a motion to vacate the 209A order and expunge all records of that order.  After hearing, the judge endorsed the first page of the defendant’s motion: “[a]llowed.”  The commissioner filed a request for clarification of the order to expunge and the judge issued findings of fact in clarification.  Therein, she found that, based on the evidence submitted by the defendant, the alleged abuse could not have happened as claimed by the plaintiff and that it had been shown by clear and convincing evidence that the plaintiff made false statements in court and that those false assertions constitute a fraud on the court. 

Restraining orders granted pursuant to 209A are not to be expunged from the statewide domestic violence registry absent a showing that the order was obtained through the commission of fraud on the court.  Silva v. Carmel, 468 Mass. 18 (2014.)  The Court of Appeals held that the defendant had not met the standard for “fraud on the court,” which standard was established by Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, at 729-30 (2006) as follows: “where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”  Here, the judge did not find that the claim of abuse was sentiently false, nor that the plaintiff’s conduct was part of a larger pattern of harassment or an unconscionable scheme.  The Court of Appeals emphasized that there is a distinction between a false allegation and a deliberate scheme, which typically involves others in the court system, combined with a larger pattern of harassment.  The Court of Appeals noted that Adams carved out a narrow exception for fraud on the court and that “something considerably more systemic or egregious than what is shown here is required to constitute fraud on the court and therefore outweigh the public interest in the commissioner’s statutory mandate to maintain 209A records for use by the courts and other authorized agencies.”


B.C. v. F.C.
September 23, 2016
No. 15-9-1067

In July of 2011, the plaintiff obtained a restraining order on an ex parte basis pursuant to M.G.L. c. 208 §209A (“209A.”)  At the hearing after notice a week later, neither party appeared in person, but each had counsel who appeared on his/her behalf.  The plaintiff did not seek an extension of the 209A order and it was terminated that day.

Four years later, the parties jointly presented a motion seeking to have the 209A order expunged from the statewide domestic violence registry.  In her affidavit in support of that motion, the plaintiff asserted that “her psychosis-induced fictitious information . . . was tantamount to constructive fraud.”  She also provided records reflecting her psychiatric hospitalization.  The trial judge expunged the 209A order, reasoning that “[w]hen the genesis of the complaint is fantasy, the result infects the entire court process.”  He also, however, stayed his expungement order to report questions of law to the Court of Appeals.

Restraining orders granted pursuant to 209A are not to be expunged from the statewide domestic violence registry absent a showing that the order was obtained through the commission of fraud on the court.  Silva v. Carmel, 468 Mass. 18 (2014.)  The standard to establish a “fraud on the court” was set out in Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, at 729-30 (2006) as follows: “where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” 

The Court of Appeals declined to expand the holding of Adams, relying on Vacarro v. Vacarro, 425 Mass. 153, 156 (1997) in which the Supreme Judicial Court noted that “[t]here is nothing in the language of 209A or in the 1992 amendment creating the registry that permits a record to be removed or that authorizes entry of a judicial order directing expungement of a record” and that this “reflects a deliberate legislative decision that all records be available for review by a judge who is considering an application for a restraining or protective order.” Id. at 157.  The Court of Appeals also referenced a strong public policy in alleged abuse cases that judges and law enforcement officials have as much information as possible.

Frost-Stuart v. Stuart
Sept. 27, 2016
No. 15-P-100

Mother appealed from judgments on a complaint for modification and multiple complaints for contempt.  The parties have three children and were divorced after fifteen years of marriage.  Pursuant to the judgment of divorce nisi incorporating their separation agreement, the father was to pay the mother a minimum of $63,000 per year as alimony as well as $57,000 per year ($4,750 monthly) as child support.  Several months after the divorce, the mother began living with her boyfriend.  Approximately two and a half years later, the father filed a complaint for modification seeking termination of his alimony obligation on the basis of the mother’s cohabitation.  The mother’s counterclaim requested an increase in child support if alimony were reduced or terminated.  Mother also filed several complaints for contempt and the father filed one while the modification action was pending. 



Relying on the Alimony Reform Act, M.G.L. c. 208 §§ 48-55 (the “ARA”), the trial court terminated the father’s alimony obligation and increased his child support payments to $5,529 per month due to the mother’s cohabitation.  The Court of Appeals reversed this aspect of the judgment, which was issued prior to the Supreme Judicial Court’s ruling in Chin v. Merriot, 470 Mass. 527 (2015), in which the Supreme Judicial Court held that the cohabitation provision of the ARA could only apply prospectively.  Because the parties’ divorce pre-dated the ARA, the father’s alimony obligation could not be terminated based solely upon the mother’s cohabitation.  The Court of Appeals then instructed that upon remand, the trial court must determine whether a modification of the father’s alimony obligation was warranted in light of his increased income; the parties’ respective expenses; the marital lifestyle as compared to their current, respective lifestyles; and the agreed-upon alimony obligation reflected in their separation agreement.  On remand, child support must also be recalculated because the trial judge had increased the child support order based, in part, on its termination of father’s alimony obligation.  In connection with that recalculation, the Court of Appeals also based its vacature and remand of child support upon its holding that the trial court improperly attributed income to the mother in the form of contributions from her boyfriend where the judge had not made the findings necessary to determine those contributions constitute income to the mother.



The Court of Appeals instructed that on remand, and in light of the holding that father’s alimony obligation should not have been terminated, the trial court must reconsider two of the mother’s complaints for contempt: one alleging that the father failed to pay alimony in 2013 and the other that the father owes the mother an additional $33,000 in retirement assets.

Cappuccino v. Cappuccino
October 18, 2016

Mother appeals from Probate and Family Court judgment on father’s complaint for modification and mother’s complaint for contempt on the grounds that the judge improperly excluded the father’s rental income when calculating child support, abused his discretion in attributing to the mother income of $750 per week based on her earning capacity and $346 per week based on contributions by her boyfriend, and abused his discretion in failing to find the father in contempt.

The parties divorced on January 4, 2010, by a separation agreement incorporated into a judgment of divorce. Per the judgment, the Father’s child support obligation was $577 per week. In January 2012, Father filed a complaint for modification seeking to reduce his child support obligation, and in November 2013, mother filed a complaint for contempt alleging father had failed to pay a $10,000 lump sum towards his child support arrearage as required by a previous judgment. The complaints were consolidated for trial. At trial, a judge of the Probate and Family Court entered a judgment reducing the father’s child support obligation to $371 per week, retroactive to January 24, 2012, and did not find the father in contempt.

The mother challenges the reduction of child support on the grounds that the judge erred in determining the parties’ incomes. The wife first argues that it was error for the judge to exclude the father’s rental income from Canton Lanes Limited Partnership when calculating child support. The judge excluded this income on the basis that it was derived from an asset assigned to the father in the divorce and to which the wife waived her interest. The Appeals Court found that the exclusion of this income was an abuse of discretion as, per the Child Support Guidelines, there is a rebuttable presumption that net rental income derived from a partnership is income for calculating child support, which presumption was not overcome; the Canton Lanes rental income was considered in calculating the initial child support order; and the mother could not waive the children’s right to child support derived from that income. The Appeals Court found that there was no risk of “double counting” by treating Canton Lanes as both an asset and a stream of income as neither the value of the father’s interest in Canton Lanes nor his ability to earn income is diminished by treating the interest as an asset and a source of income for calculating child support.

The mother asserts that the judge further abused his discretion by attributing income of $346 per week to her based on her cohabiting boyfriend’s contributions of $1,500 per month to the mortgage payment. The judge made no additional findings on this issue, and the Appeals Court found that, without further findings, there were insufficient facts to determine whether the boyfriend’s contributions should be included in the mother’s income for child support calculations. The issue was remanded for further findings.

The mother further argued that the judge abused his discretion by attributing to her an earning capacity of $750 per week.  At trial, the judge found that the mother had the ability to work thirty hours per week earning $25 per hour.  The Appeals Court found that there was no evidence to support this finding as the mother does not have a college degree, has minimal work experience, and is responsible for the overwhelming majority of the children’s care. The Appeals Court found that this attribution was an abuse of the judge’s discretion and remanded the issue.

Finally, the mother asserts that the judge abused his discretion by failing to find the father in contempt of a judgment of March 16, 2013, requiring the father to pay the mother a lump sum of $10,000 by June 7, 2013, toward his child support arrearage. The judge found that where the mother’s testimony was the only evidence presented as to the father’s failure to pay and no direct evidence was provided, he could not find the father in contempt. The Appeals Court questioned how the mother could provide evidence, other than her testimony, of something that she claims did not occur and noted that the judge did not indicate that mother’s testimony as to the contempt issue lacked credibility. As such, the Appeals Court set aside and remanded the contempt judgment for further explanation of the judge’s rationale or an alternative disposition.

Judgment on complaint for modification and complaint for contempt remanded to the Probate and Family Court for further proceedings.

Partanen v. Gallagher
October 4, 2016

Plaintiff, Karen Partanen, appeals a judgment of the Probate and Family Court dismissing her complaint to establish legal parentage of two children for failure to state a claim upon which relief can be granted. The Supreme Judicial Court (“SJC”) reversed the judgment of dismissal and remanded the matter to the Probate and Family Court for further proceedings.

In February 2014, Partanen filed a complaint in the Probate and Family Court seeking to establish legal parentage of two children, Jo and Ja, pursuant to M.G.L. c. 209C, § 6(a)(4), which provides that, “a man is presumed to be the father of a child [born out of wedlock if]…he, jointly with the mother, received the child into their home and openly held out the child as their child.” The Plaintiff and the Defendant, Julie Gallagher, were in a committed, non-marital relationship between 2001 and 2013. During this time, Gallagher underwent invitro fertilization in 2007 and 2011 with Partanen’s full acknowledgement, participation, and consent, and gave birth to the children, Jo and Ja. After the children’s birth, Partanen never formally adopted the children, but the parties represented themselves publicly as the children’s parents, and jointly raised the children until the parties’ separation in November 2013. The Probate and Family Court judge found that, because it was undisputed that Partanen was not the children’s biological parent, she could not be deemed a parent under the statute. The matter was dismissed for failure to state a claim upon which relief can be granted.

The SJC took the case on direct appellate review and considered, first, whether one could be a presumptive parent in the absence of a biological relationship; and second, whether Partanen was a presumptive parent to Jo and Ja, pursuant to the statute. In beginning its analysis, the SJC first established that the statute should be construed in a gender-neutral manner. The SJC found that the purpose of the statute is to provide the same rights and protections of the law to all children, regardless of whether their parents are married. The SJC found that nothing in the statute expressly restricts its applicability to parentage claims based on asserted biological ties, and in fact, the statute had been construed, in the past, to apply where no biological relationship existed. Of utmost importance is the child’s best interests, generally best served by having the financial and emotional support of two parents. The SJC held that a biological relationship is not necessary to establish oneself as a presumed parent under the statute.

The SJC next considered whether Partanen was a presumed parent, which required her to first allege that the children were born to both Gallagher and to her. The SJC found her allegations sufficient to prove this as both of Gallagher’s pregnancies were undertaken with Partanen’s full acknowledgement, participation, and consent and with the shared intention that the parties would both be parents to the resulting children. Partanen then had to allege that she and Gallagher received the children into their home and openly held out the children as their children. As Partanen was actively involved in the care and nurturing of the children from the moment of their birth, was involved in key decisions, she and Gallagher represented themselves to others as the children’s parents, and the children called Partanen “Mommy”, the SJC found Partanen’s allegations sufficient in this respect. As such, the SJC found that the allegations in Partanen’s complaint were sufficient to state a claim of legal parentage under M.G.L. c. 209C.

Reversed and remanded to Probate and Family Court for further proceedings.