Opinion
No. 12–P–1266.
2013-04-25
COMMONWEALTH v. Michele E. HALE.
By the Court (KATZMANN, MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged by complaint with parental kidnapping in violation of G.L. c. 265, § 26A. A pretrial motion to dismiss for lack of probable cause was denied. On the morning of the trial, the defendant moved in limine to dismiss the complaint because the order relied upon by the Commonwealth for the prosecution was issued by the Probate and Family Court, which the defendant claimed lacked jurisdiction. After an evidentiary hearing, the judge allowed the motion and dismissed the case. The Commonwealth has appealed; we reverse.
The judge dismissed the complaint based on his view that the Probate and Family Court lacked jurisdiction over the father's original complaint for custody—filed in 2002—because the defendant and her child lived out of State at the time. However, the basis of the criminal complaint was that the defendant moved the child out of State in 2009, after she appeared in Massachusetts Probate and Family Court, stipulated to shared custody with the father, and was ordered by the court to remain in the Commonwealth with the child until the matter was resolved. Although the defendant was vested with sole physical and legal custody of the child when he was born out of wedlock, the Probate and Family Court order for her to remain with the child in Massachusetts was left unchallenged and modified that status. See G.L. c. 209C, § 10( b ). Proof of such a court order is one means to establish that an individual lacks lawful authority to remove her child, so that the order's violation constitutes parental kidnapping. Commonwealth v. Gonzalez, 462 Mass. 459, 463–464 (2012). That the order here was temporary rather than final did not provide the defendant with license to violate it.
To the extent the defendant believed the order in question was void or erroneous, her proper avenue for redress was in Probate and Family Court, which, given its expertise, “is particularly well suited to hear such a claim in the first instance.” Id. at 466. If the defendant did not achieve a satisfactory result in that court, she could have appealed. Ibid. Violating the court order and challenging its validity within a later criminal prosecution was improper.
In the end, the defendant's claim that the Probate and Family Court lacked jurisdiction over the matter is without merit. “[I]f a child resides out of the Commonwealth, a civil proceeding under G.L. c. 209C, may be filed in the judicial district or county in the Commonwealth where the putative parent resides.” R.L.H. v. T.E.L ., 401 Mass. 101, 103–104 (1987). In fact, the court in R.L.H. determined that the first two sentences of G.L. c. 209C, § 4, pertain to venue rather than jurisdiction. Id. at 102. We add that in this case, personal jurisdiction over the mother was established. Thus, as the Supreme Judicial Court has held, where a challenge to the jurisdiction of the Probate and Family Court was based on nonresident status, “personal jurisdiction over the parents is a sufficient basis for exercising jurisdiction in custody proceedings which arise under [G.L. c. 209,] § 32.” Id. at 103 (applying same rule to custody proceedings under G.L. c. 209C), quoting from Green v. Green, 351 Mass. 466, 471 (1966). The judge's conclusion to the contrary was error.
Furthermore, the judge's reliance on Smith v. McDonald, 458 Mass. 540 (2010), to justify the dismissal of the case was misplaced. In Smith, the Supreme Judicial Court determined that a Probate and Family Court judge lacked the authority to order a mother and a nonmarital child, who were living in New York, to return to Massachusetts, where neither the putative father's paternity nor shared custody had been established. Id. at 549–550.
The court did not determine that the Probate and Family Court lacked jurisdiction over the matter, nor was the matter dismissed. Rather, the case was remanded to that court to address custody, visitation, and support issues. Id. at 550–556.
Again, to the extent the Smith opinion calls into question the authority of the Probate and Family Court to issue the order requiring the nonresident mother to keep the child in the Commonwealth during the pendency of paternity proceedings, the proper avenue to raise that argument was before the Probate and Family Court, or in a timely appeal from the order.
Finally, we note that at the motion to dismiss stage, a judge is limited to a few narrow categories that merit the extraordinary relief of dismissal. A complaint may be dismissed for lack of sufficient evidence to support the charge, see Commonwealth v. McCarthy, 385 Mass. 160 (1982), or if the integrity of the proceedings may have been violated, see Commonwealth v. O'Dell, 392 Mass. 445, 446–449 (1984), or for other challenges to the validity of the complaint. Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). None of these appear in this case. Because there existed probable cause to believe the defendant removed the child from the Commonwealth in violation of the Probate and Family Court order, it was error to dismiss the complaint alleging a violation of G.L. c. 265, § 26A.
Order dismissing complaint reversed.