Opinion
No. 12–P–616.
2012-11-19
Jane SMITH v. Robert JONES.
By the Court (COHEN, KATZMANN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from an order entered on September 29, 2011, pursuant to G.L. c. 209A, that made permanent the terms of an earlier temporary order that the parties' daughter not be removed from the Commonwealth and that she not be required to submit to any examination within the Commonwealth. Before the permanent order entered, the Superior Court of California (which had, and continued to assert, jurisdiction) had issued an order suspending the father's visitation and ordering an evaluation of the child by a court-appointed evaluator. The Probate and Family Court judge below was aware of the California court's retention and assertion of jurisdiction, and also of its order regarding evaluation of the child and suspension of the father's visitation.
The father acknowledges that the probate judge had the authority to enter emergency orders designed to protect the child's best interests and to protect her from harm; accordingly he does not appeal from any of the temporary orders entered below. He contends, however, that the permanent order exceeded the probate judge's jurisdictional authority because, among other things,
it violated the Federal Parental Kidnapping Prevention Act (PKPA), 28 U . S.C. § 1738A. We agree. Absent the need to make emergency orders designed to protect a child, the PKPA precludes a court from modifying a custody or visitation order of another court unless that court no longer has jurisdiction or has declined to exercise jurisdiction. 28 U.S.C. § 1738A(c). That is not the case here; California continued to have original jurisdiction and the California Superior Court judge had informed the probate judge that he intended to exercise jurisdiction. Indeed, the California order explicitly provided: “This Court shall retain jurisdiction in this case and not decline to exercise it.” In such circumstances, the probate judge's jurisdictional authority was emergency in nature and “limited to issuing temporary orders designed to effectuate [California's] exercise of jurisdiction, yet keep the child safe.” Adoption of Yvette (No. 1), 71 Mass.App.Ct. 327, 341 (2008), quoting from McDougall v. Acres, 427 Mass. 363, 369 (1998). Moreover, “[i]t is the PKPA's formulation of emergency that is controlling, irrespective of the broader emergency jurisdiction of the [Massachusetts Child Custody Jurisdictional Act],” G.L. c. 209B. Id. at 340. We appreciate the probate judge's desire to protect the child, especially in light of the information before him concerning the potential psychological harm of an evaluation. However, once the California court asserted its jurisdiction and entered its own orders (including a provision preventing the father from visiting the child), the probate judge did not have jurisdiction to enter a permanent order.
The father also contends that the permanent order exceeded the permissible scope of G.L. c. 209A and G.L. c. 209B and that the probate judge erred in failing to make findings. Given our disposition, we need not reach any of these arguments.
The permanent order of September 29, 2011, is vacated, and the case is remanded to the Probate and Family Court. On remand, the following temporary order shall enter: “The abuse prevention order originally entered on September 15, 2009, as subsequently amended November 17, 2010, shall be extended on a temporary basis for forty-five (45) days to give the parties the opportunity to bring to the attention of the California Superior Court any continuing concerns regarding the court-ordered evaluation of the child and contact between the father and the child.”
The clerk of this court is instructed to send a copy of this decision and order to the California Superior Court.
So ordered.