In Massachusetts, a parent’s decision-making authority is known as “legal custody”. Legal custody relates to a parent’s right and responsibility to make major decisions regarding a child’s welfare including matters of education, medical care and emotional, moral and religious development. Parents are either awarded “sole” or “joint” legal custody. This is governed by two different statutes, depending on whether the parents are married or unmarried. If the parties are married, General Laws of Massachusetts (M.G.L.) Chapter (Ch.) 208, Section 31 is applicable. If the parties are unmarried, M.G.L. Ch. 209C, Section 10 is applicable.

Assuming the birth mother is the intended parent, there are no requirements for the mother to obtain parental responsibility. (M.G.L. Ch. 209C.)

If the Parties are Married

If the parents are married, a father automatically has parental responsibility for the child if the father is married to the person who gave birth to the child, and the child was born during the marriage or within 300 days after the marriage was terminated. (M.G.L. Ch. 209C, Section 6.)

If the Parties are Unmarried

If the parents are unmarried, there are two main ways that a father can obtain parental responsibility:

• voluntary acknowledgment of parentage; or
• adjudication of parentage by a court.

Voluntary Acknowledgement

The Voluntary Acknowledgement is a written agreement executed by both parents. It must be notarised and filed with the registrar of vital records and statistics or the court. Once it is executed and filed, it has a legal effect as a judgment of parentage, as long as it is not rescinded within 60 days or challenged within one year on the grounds of fraud, duress or a mistake of fact. (M.G.L. Ch. 209C, Section 11.) Once the Voluntary Acknowledgement is executed and filed, and the 60 days have passed, the father’s name is added to the child’s birth certificate.

If the father of the child was not the spouse of the mother, prior to signing a Voluntary Acknowledgement, the birth mother and her spouse must sign an affidavit denying that the spouse has any parental responsibility, prior to the father acknowledging parentage. (M.G.L. Ch. 46, Section 3C.)

Adjudication

If one of the two parents is seeking to establish parentage, and there is no Voluntary Acknowledgement, either parent can file a Complaint to Establish Parentage. The court will then have to make a determination as to the parentage. If the father’s parentage is in dispute, the court can order genetic marker testing for the child and the father to easily make this determination. If the genetic marker test demonstrates that the father is the biological parent, the court will enter an order establishing that the man is the legal father, and the father’s name will then be added to the child’s birth certificate.

A non-genetic parent can obtain parental responsibility through a few methods.

Spouse of Birth Mother

If a person is married to the birth mother, even if they are not the genetic parent, they are presumed to be the legal parent unless both the biological mother and father sign an affidavit. (M.G.L. Ch. 209C, Section 6.) This applies to heterosexual and same-sex marriages. (Corte v Ramirez, 81 Mass. App. Ct. 906 (2012).)

De Facto Parent

If an individual has, with the support of the legal parent, become a parent to a child through their parental conduct and care, they can seek “De Facto Parentage”. (M.G.L. Ch. 209C, Section 25.) To do so, the individual must file a complaint where they allege specific facts detailing why they should be adjudicated a de facto parent. The complaint must be served on all parents, legal guardians and legal custodians of the child. In reviewing the complaint and whether to grant parentage, the court considers seven factors. Specifically, the court looks at whether the individual:

• (i) resided with the child as a regular member of the child’s household for at least 3 years, or 40% of the child’s life (whichever is shorter);
• (ii) engaged in consistent caretaking of the child;
• (iii) undertook full and permanent responsibilities of a parent without the expectation of financial compensation;
• (iv) held the child out as their own; and
• (v) had a bonded and dependent relationship,

and (vi) if the parent of each child consented to the parental relationship, as well as (vii) if adjudicating parentage is in the child’s best interest.

Assisted Reproduction

Massachusetts recently enacted the “Massachusetts Parentage Act” (MPA) which details protection for parents if they had a child through assisted reproduction, including artificial insemination, in-vitro fertilisation (IVF), intrauterine insemination (IUI), gestational surrogacy or genetic surrogacy – for both same-sex and heterosexual couples. The MPA details a protocol under the various assisted reproduction scenarios to ensure the intended parents are able to have all the same rights and responsibilities as parents who have children through more traditional means.

Artificial insemination/IVF/IUI

Unlike many other jurisdictions, Massachusetts is an outlier in that it grants very liberal rights to parents who grow their families through assisted reproduction. The relevant statute, the MPA, explains that a party who consented to assisted reproduction with the intention of being a parent to that child is the parent. Consent can be established by: (i) a record signed by the person giving birth and the intended parent on or before the birth of the child; or (ii) a finding by the court that, by a preponderance of the evidence, the parties had agreed, prior to the birth, to be the parents, or that the person who seeks to be the parent, together with the person giving birth, voluntarily participated in the assisted reproduction. (M.G.L. Ch. 208, Section 27.)

Surrogacy

For families with genetic surrogacy, wherein the surrogate is utilising their own genetic materials, the MPA requires a pre-conception surrogacy agreement. This surrogacy agreement must be incorporated into a judgment of parentage. When the child is born, the intended (and legal) parents then file notice with the court, and the court will issue a post-birth judgment of parentage.

For families with gestational surrogacy, wherein the surrogate is carrying genetic material that is not their own, parentage can be determined pre- or post-birth. The parents, and surrogate, must enter into a surrogacy agreement, which must be in compliance with the particularities of M.G.L. Ch. 208, Sections 28A, B and C.

Adoption

A person may adopt a child if there is written consent from: (i) the child to be adopted, if over 12 years old; (ii) the child’s spouse, if any; (iii) the lawful parents or surviving parent; or (iv) the mother, if the child was born to unmarried parents and no father (or other parent) had been adjudicated. (M.G.L. Ch. 210, Section 2.)

If there is no parental consent, there are two ways for a person to adopt a child, both of which require a petition for adoption: (i) if the person to be adopted is 18 or older; or (ii) if the court finds that allowing the petition is in the child’s best interest. In looking at whether the adoption is in the child’s best interest, the court must consider a variety of factors as detailed in the statute. These factors relate to the child’s relationship with the potential adoptive parent, the relationship with the legal parents, the level of neglect or abuse that may have been present, etc.

See previous sections.

See previous sections.

See previous sections.

Any child of divorced parents who was born in Massachusetts, or who has resided in Massachusetts for at least five years, cannot be moved out of Massachusetts without the consent of both parents or court order. Although the relevant statute, M.G.L. Ch. 208, Section 30, applies only to married parents, the Massachusetts Supreme Court held that the same rules must apply for children of unmarried parents. The Massachusetts Supreme Court decided that both legal parents must agree to move the child outside of Massachusetts. (Smith v McDonald, 458 Mass. 540 (2010).)

M.G.L. Ch. 208, Section 30, as well as the court in Smith v MacDonald, is clear that if the parents are unable to agree, the court may issue an Order. If the required consent cannot be obtained, then the issue of relocation has to be decided by the court, often through a trial.

The analysis does not change depending upon whether the proposed relocation is to a nearby location, another part of Massachusetts, or a greater distance. The governing legal standard remains the same and continues to depend upon the parties’ custodial arrangement rather than state or municipal boundaries.

A relocation to an adjoining state is not subject to a different legal standard simply because it crosses a state line, nor is a move within Massachusetts analysed differently simply because of the distance involved (although a move to a nearby town within Massachusetts would not require the permission of the other parent or the court, whereas a significant relocation within the state would). Rather, the court focuses on the practical impact of the proposed relocation on the child and the existing parenting arrangement.

To be sure, an international relocation or a move requiring air travel presents practical considerations that are not implicated by a relocation to a location an hour away by car. Those considerations may affect the court’s analysis of the child’s best interests, but they do not alter the governing legal standard.

Having said that, any practitioner would be remiss not to acknowledge the practical realities of relocation. It is generally easier to justify a move 90 minutes away than one requiring a 19-hour flight to the other side of the world. The impact of travel on the child, the feasibility of maintaining the child’s relationship with the left-behind parent, the cost of transportation, and the logistics of parenting time become increasingly significant as the distance grows. Those are all factors the court will consider.

Conversely, where the proposed move is nearby, or even to a neighbouring state within driving distance, preserving regular and frequent contact between the child and the left-behind parent is often far more achievable. Although the governing legal standard remains unchanged, the practical considerations informing the court’s best interests analysis necessarily differ depending upon the distance involved and the effect the relocation will have on the child’s relationship with the non-relocating parent.

It is unlawful to permanently remove a minor child from Massachusetts without the consent of the other parent or authorisation from the court. Massachusetts addresses such conduct through two distinct legal frameworks. First, its domestic relations statutes prohibit the removal of a child of divorced or separated parents from Massachusetts without either the consent of the other parent or a court order under M.G.L. Ch. 208, Section 30. Second, its criminal laws prohibit parental kidnapping by making it a crime for a relative to take or keep a child from the child’s lawful custodian without legal authority pursuant to M.G.L. Ch. 265, Section 26A.

When a child is wrongfully removed from Massachusetts, the left-behind parent may pursue a range of civil, criminal, and, where applicable, international remedies.

From a civil perspective, the governing statute is the Massachusetts Child Custody Jurisdiction Act (MCCJA), M.G.L. Ch. 209B. The MCCJA should not be confused with the Uniform Child Custody Jurisdiction Act, which Massachusetts has not adopted, although nearly every other US jurisdiction has.

Under the MCCJA, a Massachusetts court retains jurisdiction to determine custody even after a child has been removed from the state, provided Massachusetts was the child’s home state within six months before the commencement of the proceeding. The child’s physical presence in Massachusetts is not required.

Timing, however, is critical. The six-month period begins to run on the date the child is wrongfully removed. A left-behind parent should therefore promptly file a custody action together with a motion seeking the child’s immediate return in order to preserve Massachusetts’ jurisdiction under the MCCJA.

From a criminal perspective, the left-behind parent may report the abduction to local law enforcement, which may pursue charges under M.G.L. Ch. 265, Section 26A. Under the statute, a relative who, without lawful authority, takes a child from the child’s lawful custodian and removes or retains the child outside Massachusetts is subject to a fine of up to USD5,000, imprisonment in state prison for up to five years, or both.

In cases involving an international removal, the available remedies differ depending on whether the destination country is a Contracting State to the Hague Convention on the Civil Aspects of International Child Abduction. The threshold question, therefore, is whether the child has been taken to a Hague Convention country. The United States is a Contracting State, and the Convention is implemented domestically through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. Section 9001 et seq. Accordingly, where a child has been wrongfully removed from another Contracting State to Massachusetts, the left-behind parent may commence proceedings in the appropriate Massachusetts court seeking the child’s return under ICARA.

Conversely, where a child has been wrongfully removed from Massachusetts to another Contracting State, the left-behind parent may seek relief under the Hague Convention by submitting an application to the Central Authority in the requested State or, where permitted, by commencing return proceedings directly before the appropriate court.

If the child has been taken to a country that is not a Contracting State to the Hague Convention, the Convention’s return mechanism is unavailable. In that circumstance, the left-behind parent must generally pursue relief through the domestic courts of the country where the child is located, subject to that country’s laws governing custody, recognition of foreign judgments, and applicable principles of international judicial co-operation. The left-behind parent may also seek assistance from the US Department of State, although it has no authority to compel the child’s return.

The United States is a signatory to the 1980 Hague Convention which is implemented domestically through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. Section 9001 et seq.

The US State Department maintains the Hague Convention Attorney Network, a nationwide network of volunteer attorneys who may accept Hague Convention cases on a pro bono or reduced-fee basis. To request pro bono or reduced-fee representation, applicants must submit a Request for Legal Assistance. After receiving the required documentation, the Office of Children’s Issues provides eligible applicants with information to assist them in locating counsel, including a list of attorneys. Eligibility is based on income guidelines tied to 125% and 200% of the US Federal Poverty Guidelines. Representation is not guaranteed. The applicant remains responsible for contacting the attorneys provided, and availability depends on whether an attorney is willing and able to accept the matter. If the applicant needs an interpreter to communicate orally with a prospective attorney, the Office of Children’s Issues may arrange telephone interpretation services at no cost to the applicant or attorney. See the Annual Report to Congress on International Child Abduction.

The knowledge and application of the Hague Convention’s underlying principles can vary depending on the forum in which the petition is filed. In the United States, both state and federal courts have jurisdiction to hear Hague Convention cases, and each forum presents distinct advantages and disadvantages. Practitioners should also bear in mind that, on a per capita basis, the United States hears substantially fewer Hague Convention cases than many other Contracting States, including the United Kingdom. As a result, the level of judicial familiarity and experience with Convention proceedings may differ from court to court. Accordingly, it is incumbent upon counsel to ensure that the Court is fully apprised of the Convention’s framework, objectives, and governing legal principles. In practice, however, neither state nor federal courts exhibit greater sympathy toward either the Convention’s return mechanism or its defences. Rather, the courts seek to apply the Convention in accordance with its terms, recognising that Hague proceedings are intended to determine the proper forum for resolving custody disputes, not the merits of custody itself. The respondent bears the burden of proving any applicable defence under the International Child Abduction Remedies Act (ICARA). When such defences are raised, the courts carefully evaluate the evidence presented while remaining mindful that the Convention’s primary purpose is to secure the prompt return of wrongfully removed or retained children.

When a child is wrongfully removed to or retained in a country that is not a Contracting State to the Hague Convention, the civil remedies available under the Convention and its implementing legislation in the United States, the International Child Abduction Remedies Act (ICARA), are unavailable. Both the Hague Convention and ICARA apply only where the child has been wrongfully removed or retained between two Contracting States. As the court explained in Mezo v Elmergawai, 855 F. Supp. 59 (E.D.N.Y. 1994), “if a child is taken from a signatory country and is retained in a non-signatory country, it appears that there is no remedy under either the Child Abduction Act or the Hague Convention. Similarly, if a child is taken from a non-signatory country and is retained in a signatory country, there is no remedy under either enactment.” In recognition of this gap, Congress enacted the International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. Section 1204, in 1993. Unlike the Hague Convention, IPKCA applies regardless of whether the destination country is a Contracting State. The statute makes it a federal crime to remove or retain a child outside the United States with the intent to obstruct another person’s parental rights. “Parental rights” include rights to physical custody, whether sole or joint, as well as rights of visitation, when those rights arise by court order or operation of law. Although no comparable international civil return mechanism exists for cases involving non-Contracting States, the US Department of State’s Office of Children’s Issues may assist left-behind parents through diplomatic outreach, co-ordination with US embassies and consulates abroad, and engagement with foreign governmental authorities. While these diplomatic efforts do not provide a judicial remedy or guarantee a child’s return, they remain an important resource for parents seeking assistance in non-Convention cases.

While the Convention contemplates that return proceedings should be resolved within six weeks, that timeline is rarely achieved in practice. Indeed, parties are often fortunate to obtain an initial hearing within four weeks of filing the petition, particularly in federal court. In practice, Hague Convention cases in the United States are more commonly resolved within approximately four to eight months, depending on the complexity of the issues and the defences asserted. Where defences are raised, the proceedings often become more involved, requiring expert witnesses and, in some cases, the appointment of a Guardian ad Litem to investigate issues affecting the child and report to the court. Although these measures may assist the court in resolving disputed issues, they frequently have the unintended consequence of delaying the adjudication of the petition. In terms of cost, many attorneys will represent left-behind parents on a pro bono or reduced-fee basis. This is particularly true where the parent seeks assistance through the US State Department’s Office of Children’s Issues, which should be every left-behind parent’s first point of contact. The Office can assist eligible applicants in locating attorneys willing to accept Hague Convention matters on a pro bono or reduced-fee basis. By contrast, retaining private counsel can be extremely expensive. Given the expedited nature of Hague Convention proceedings, attorneys are often required to devote substantial firm resources to trial preparation over a compressed period. As a result, it is not uncommon for legal fees and litigation expenses to exceed USD250,000 in a contested case.

This is not applicable as the US is a signatory to the 1980 Hague Convention.