Fall 2016: Subject Matter Jurisdiction in Child Custody and Support Issues: An Argument for the Adoption of the UCCJEA

By Jaye L. Samuels, Esq., Infinity Law Group LLC

Often, as family law attorneys, we are focused on the pragmatic and instant concerns of the parents we represent.  What time and where will transitions occur?  How can we establish a system for communication that will minimize conflict between co-parents?  We’re not often confronted with procedural issues that create hard lines that prevent us from helping parents put their children first.  Often times, we need not give a second thought to whether the Courts of the Commonwealth have subject matter jurisdiction over the issues at hand.  When these issues arise, however, they can result in costly litigation, sometimes in the Courts of two separate states.  Massachusetts’ failure to yet adopt the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is problematic on a number of fronts, all of which create unnecessary cost, both financially and emotionally, when families move to or from the Commonwealth.

A Brief Refresher on Subject Matter Jurisdiction

In reading, it is important to remember that unlike personal jurisdiction, the issue of subject matter jurisdiction may not be waived.  While a party may voluntarily submit to a Court’s personal jurisdiction over him or her, parties cannot authorize a Court to exercise subject matter jurisdiction where it has none.  A Court may dismiss a case for lack of subject matter jurisdiction at any point during litigation, and may even raise this issue sua sponte.  Orders entered by a Court that lacks subject matter jurisdiction are void on their face and are not entitled to full faith and credit before the Courts of sister states.  Further, the exercise of subject matter jurisdiction is voluntary on the part of the Court and a Court with the authorization to exercise subject matter jurisdiction may, nonetheless, decline to exercise the same.   This makes it integral for attorneys to be clear on when a Court may properly exercise subject matter jurisdiction over the issue at hand in order to avoid substantial waste of client resources.

The Current Landscape[1]

Currently, Massachusetts is the only jurisdiction in the United States that has failed to adopt the UCCJEA.  While this difference means little in initial actions to establish parenting plans and/or support orders, it creates a wide gulf between Massachusetts and the rest of the country when children move across state lines and then modification or enforcement is sought. 

In establishing subject matter jurisdiction over the custody and support of minor children, Massachusetts currently relies upon the Massachusetts Child Custody Jurisdiction Act (“MCCJA”), GL c. 209B, Massachusetts’ Uniform Interstate Family Support Act (“UIFSA”), GL c. 209D, and the Federal Parental Kidnapping Prevention Act (“PKPA”), 28 USC § 1738A.   As with the rest of our sister states, so long as Massachusetts is a child’s “home state” at the time of filing, or is an appropriate jurisdiction in the case of a child who has no “home state”, Massachusetts can properly exercise subject matter jurisdiction over the custody and support of minor children. “Home State” is uniformly defined as the state in which the child has lived for the six months preceding the filing of the action[2].  Massachusetts is also permitted to exercise limited emergency jurisdiction over these issues in the case a child is within the Commonwealth, though this jurisdiction is temporary in nature.

Where things get complicated is when there is a removal from or to the Commonwealth.  This is because the UIFSA in all fifty states, the PKPA, and the UCCJEA as adopted in every US State except Massachusetts allow for the initiating tribunal to retain exclusive and continuing jurisdiction over the custody and support of a minor child even after she or he has established a new home state.  Unless and until the initiating tribunal enters a specific order ceding subject matter jurisdiction, all other jurisdictions are barred from exercising subject matter jurisdiction over modifications.  In contrast, the MCCJA automatically cedes subject matter jurisdiction over custody issues once a child has established a new home state.   There is no mechanism by which Massachusetts may retain jurisdiction, and Massachusetts Courts are, in fact, specifically barred from so retaining jurisdiction by both the MCCJA and the Federal PKPA. 

First, there is a practical problem: Massachusetts Courts may have exclusive and continuing jurisdiction over the issue of support of a minor child, while having no ability to exercise jurisdiction over the modification of a parenting plan.  In a post-removal modification, parties may be forced to bifurcate these issues and litigate two separate actions in two separate states.  The emotional and financial costs of supporting two separate actions are deeply troubling.  One must also consider that the interconnected nature of the split of parenting time between the parents and the appropriate child support guidelines calculations means that a complex custody dispute in one state might needlessly delay the resolution of a far simpler support dispute in another.  It is wasteful, and against the best interests of the children at the heart of these matters.

Of equal concern, and potentially more wasteful is the potential for a knowledge gap.  The existence of an outlier state creates a knowledge gap both for attorneys litigating within the Commonwealth and for attorneys in sister states, which in turn may create unnecessary litigation and costs for our clients.  Massachusetts attorneys engaged in initial removal actions may not contemplate attorneys and jurists in sister states who may be unaware of Massachusetts’ inability to retain exclusive and continuing jurisdiction over custody orders.  We may draft agreements that fail to address this issue, or fail to request that judgments contain express language in order to avoid future confusion.  As a result, a modification action in a sister state may be complicated and delayed by a need to clarify the issue of subject matter jurisdiction.  Massachusetts attorneys may also be unaware of the Commonwealth’s inability to exercise jurisdiction over the modification of a sister state’s orders.  Massachusetts attorneys may expend client resources filing an action that is quickly dismissed, while the respondent is forced to expend resources on the motion to achieve this result.  Lastly, in some cases, attorneys who practice in multiple jurisdictions including Massachusetts may be unaware of Massachusetts’ outlier status and invest substantial effort in attempting to negotiate or litigate the issue of retaining subject matter jurisdiction in Massachusetts-based removal actions. 

I have experienced all of these scenarios, each of which has been frustrating for both myself and my clients, as funds that could be used to litigate the actual merits (or better, not expended at all) are wasted cleaning up confusion that shouldn’t exist in the first place.  Further, there are concerns that the knowledge gap, while understandable, could undermine clients’ confidence in attorneys.

The Solution

The solution to the problems created by the MCCJA is for Massachusetts to conform to the law as it exists in the rest of the United States through the adoption of the UCCJEA.  As of July 7, 2016, the UCCJEA was passed to be engrossed by the Massachusetts State Senate.  It still awaits enactment by the House, and the Governor’s signature.   In an increasingly mobile world, parents and children will continue to bear the costs of Massachusetts’ outlier status until the UCCJEA becomes law.

[1] The following paragraphs should not be construed as an exhaustive discussion of the intricacies of subject matter jurisdiction as outlined in the MCCJA, Massachusetts UIFSA, or the PKPA. 

[2] It is important to note that a parent absconding from the Commonwealth without taking the appropriate steps to establish a lawful permanent removal may complicate this issue.

Jaye L. Samuels is the Managing Associate of Infinity Law Group based in Quincy, MA. Jaye first interned for the firm in 2010 and has been a full-time associate since August of 2011. Jaye discovered her passion for family law while interning for the Mental Health Legal Advisors Committee (MHLAC), where she volunteered throughout her tenure at Northeastern University School of Law (NUSL). She now dedicates almost the entirety to her practice of this area of law and regularly appears before the Middlesex, Norfolk, Plymouth, and Suffolk County Probate and Family Courts. In addition, Jaye regularly volunteers with the Norfolk County Probate and Family Court Attorney-for-the-Day Program.