Helplinelaw - legal solution world wide  
 
round round
Part I. Administration Of The Government
Part Ii. Real And Personal Property And Domestic Relations
Part Iii. Courts, Judicial Officers And Proceedings In Civil Cases
Part Iv. Crimes, Punishments And Proceedings In Criminal Cases
Part V. The General Laws, And Express Repeal Of Certain Acts And Resolves
articles
constitution
Part The First
Part The Second
search a lawyer
Country:
City:
ACTS, STATUTES
letterboxSubmit Article
loginArticle Login
 
lawyer
Find a Lawyer :
Country :
City :
Category :
 
Home > Statutes > USA Massachusetts
USA Statutes : massachusetts
Title : PART II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
Chapter : TITLE III. DOMESTIC RELATIONS
Chapter 207: Section 1. Marriage of man to certain relatives Section 1. No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister or mother’s sister.
Chapter 207: Section 10. Foreign marriages; validity Section 10. If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth.
Chapter 207: Section 11. Non-residents; marriages contrary to laws of domiciled state Section 11. No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.
Chapter 207: Section 12. Legal ability of non-residents to marry; duty of licensing officer to ascertain Section 12. Before issuing a license to marry a person who resides and intends to continue to reside in another state, the officer having authority to issue the license shall satisfy himself, by requiring affidavits or otherwise, that such person is not prohibited from intermarrying by the laws of the jurisdiction where he or she resides.
Chapter 207: Section 13. Construction Section 13. The three preceding sections shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of those states which enact like legislation.
Chapter 207: Section 14. Determination of validity Section 14. If the validity of a marriage is doubted, either party may institute an action for annulling such marriage, or if it is denied or doubted by either party, the other party may institute an action for affirming the marriage. Such action shall be commenced in the same manner as an action for divorce, and all the provisions of chapter two hundred and eight relative to actions for divorce shall, so far as appropriate, apply to actions under this section. Upon proof of the validity or nullity of the marriage, it shall be affirmed or declared void by a judgment of the court, and such judgment of nullity may be made although the marriage was solemnized out of the commonwealth, if at that time and also when the action was commenced the plaintiff had his domicile in the commonwealth, or if he had resided in this commonwealth for five years last preceding the commencement of said action, unless the court finds that he has removed into this commonwealth for the purpose of obtaining said judgment.
The register of probate shall, within two days after the expiration of the appeal period following the entry of a judgment annulling a marriage, or if an appeal was taken within two days after entry of final judgment pursuant to a rescript of the appellate court, send an attested copy thereof to the commissioner of public health, the clerk or registrar of the city or town in the commonwealth where the marriage was solemnized, and the clerk or the registrar of each city and town in the commonwealth where a party to the marriage dwelt at the time of the marriage. The commissioner of public health and every clerk or registrar to whom such an attested copy is sent shall, forthwith upon receipt of such copy, enter upon the margin of his record of the marriage a note of reference to the judgment of annulment.
Chapter 207: Section 15. Issue of certain void marriages Section 15. The issue of a marriage declared void by reason of consanguinity or affinity between the parties shall be a person born out of wedlock.
Chapter 207: Section 16. Issue of marriage void by reason of nonage or insanity Section 16. The issue of a marriage declared void by reason of nonage, insanity or idiocy of either party shall be the legitimate issue of the parent who was capable of contracting the marriage.
Chapter 207: Section 17. Issue of marriage void by reason of prior marriage Section 17. If a marriage is declared void by reason of a prior marriage of either party and the court finds that the second marriage was contracted with the full belief of the party who was capable of contracting the second marriage that the former husband or wife was dead, or that the former marriage was void, or that a divorce had been adjudged leaving the party to the former marriage free to marry again, or that there was no former marriage, such finding shall be stated in the judgment, and the issue of the second marriage, if born or begotten before the second marriage was declared void, shall be the legitimate issue of the parent capable of contracting the marriage.
Chapter 207: Section 18. Care and maintenance of children; power of court Section 18. Upon or after a judgment of nullity, the court shall have like power to make orders relative to the care, custody and maintenance of the minor children of the parties as upon a judgment of divorce.
Chapter 207: Section 19. Situs; time; fees Section 19. Persons intending to be joined in marriage in the commonwealth shall, not less than three days before their marriage, jointly cause notice of their intention to be filed in the office of the clerk or registrar of any city or town in the commonwealth, and pay the fee provided by clause (42) of section thirty-four of chapter two hundred and sixty-two. In computing the three day period specified in this section and in determining the third day referred to in section twenty-eight, Sundays and holidays shall be counted.
Chapter 207: Section 2. Marriage of woman to certain relatives Section 2. No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother or mother’s brother.
Chapter 207: Section 20. Written notice; oath Section 20. The clerk shall require written notice of intention of marriage, on forms furnished by the state registrar of vital records and statistics, containing such information as is required by law and also a statement of absence of any legal impediment to the marriage, to be given before such town clerk under oath by both of the parties to the intended marriage; provided, that if a registered physician makes affidavit to the satisfaction of the town clerk that a party is unable, by reason of illness, to appear, such notice may be given on behalf of such party, by his or her parent or legal guardian, or, in case there is no parent or legal guardian competent to act, or by the other party. Said forms containing the parties’ written notice of intent to marry shall constitute a public record. In addition to such forms, the town clerk shall also require the parties to furnish information required for a separate report to be transmitted to the state registrar, including the social security number and residence address of both parties and such other information as may be required by state or federal law. A copy of said report shall not be retained by the town clerk nor shall it constitute a public record. The state registrar may make the information contained in said separate report available to the IV-D agency as set forth in chapter 119A and to such other state or federal agencies as may be required by state or federal law. In case of persons, one or both of whom are in the armed forces, such notice may be given by either party, provided that one is domiciled within the commonwealth. In the case of persons, one of whom is incarcerated in a county house of correction, or a state correctional facility, such notice shall be given by either party to the intended marriage. The oath or affirmation to such notice shall be to the truth of all the statements contained therein whereof the party subscribing the same could have knowledge, and may be given before the town clerk or before a regularly employed clerk in his office designated by him in writing and made a matter of record in the office. No fee shall be charged for administering such oath or affirmation. In towns having an assistant town clerk, he may administer the oath.
Chapter 207: Section 20A. Repealed, 1981, 684, Sec. 14 Chapter 207: Section 20B. Repealed, 1943, 561, Sec. 2 Chapter 207: Section 21, 22. Repealed, 1979, 376 Chapter 207: Section 23. Notice; time and situs of receiving Section 23. The clerk or registrar need not receive notices of intention of marriage on Sunday or a legal holiday, nor at any place except his office.
Chapter 207: Section 24. Nonage minors; receiving of notice; prohibition Section 24. The clerk or registrar shall not, except as provided in the following section, receive a notice of the intention of marriage of a person under eighteen.
Chapter 207: Section 25. Nonage minors; authorization of marriage Section 25. The probate court for the county where, or a district court within the judicial district of which, a minor under the age specified in the preceding section resides may, after hearing, make an order allowing the marriage of such minor, if the parents or surviving parent of such minor, or, if only one such parent resides in the commonwealth, that parent, or, if neither such parent is alive and resident thereof, or if the parent or parents qualified as aforesaid to consent are disqualified as hereinafter provided, a legal guardian with custody of the person of such minor has consented to such order. If a parent has deserted his family, or if found to be incapacitated by reason of mental illness and incapable of consent, or if found unfit under the provisions of section five of chapter two hundred and one to have custody of such minor, it shall not be necessary to obtain his consent to such order. If a parent whose consent would be required if living in the commonwealth lives outside thereof and the address of such parent is known, such notice of the proceedings shall be given him as the probate or district court may order. Said court may also after hearing make such order in the case of a person whose age is alleged to exceed that specified in the preceding section, but who is unable to produce an official record of birth, whereby the reasonable doubt of the clerk or registrar, as exercised under section thirty-five, may be removed. Upon receipt of a certified copy of such order by the clerk or registrar of the town where such minor resides, he shall receive the notice required by law and issue a certificate as in other cases.
Chapter 207: Section 26. Notice without consent; liability; cancellation Section 26. Whoever, without the consent of both parties to an intended marriage, gives the notice of their intention of marriage required by law shall be liable in damages to either of such parties whose name was so used without such consent. The superior court, upon petition of either party alleged to intend marriage in such a notice given without the consent of both parties, and not followed by their intermarriage, may, after notice and a hearing, order that such notice of intention be cancelled in the town records.
Chapter 207: Section 27. Adopted persons Section 27. A party to an intended marriage who has been legally adopted shall, in the notice of intention thereof, give the names of his parents by adoption; and the names of his parents may also be added. The consent of a parent by adoption to the marriage of a minor shall be sufficient if the consent of a parent of a minor is required by law as a preliminary to marriage. If the natural parents of a minor have been divorced and the consent of one of them is required by law, preliminary to the marriage of such minor, the consent of the parent having the custody of such minor shall be sufficient.
Chapter 207: Section 28. Certificate of intention of marriage; delivery; time Section 28. On or after the third day from the filing of notice of intention of marriage, except as otherwise provided, but not in any event later than sixty days after such filing, the clerk or registrar shall deliver to the parties a certificate signed by him, specifying the date when notice was filed with him and all facts relative to the marriage which are required by law to be ascertained and recorded, except those relative to the person by whom the marriage is to be solemnized. Such certificate shall be delivered to the minister or magistrate before whom the marriage is to be contracted, before he proceeds to solemnize the same. If such certificate is not sooner used, it shall be returned to the office issuing it within sixty days after the date when notice of intention of marriage was filed.
Chapter 207: Section 28A. Repealed, 2004, 388 Chapter 207: Section 29. Certificate of intention of marriage; issuance to immigrants Section 29. If either of the parties to an intended marriage has arrived as an immigrant from a foreign country within five days, the notice of intention may be filed at any time before the marriage, and the certificate required by the preceding section shall be issued at any time after the filing of such intention.
Chapter 207: Section 3. Application of Secs. 1 and 2 Section 3. The prohibition of the two preceding sections shall continue notwithstanding the dissolution, by death or divorce, of the marriage by which the affinity was created, unless the divorce was granted because such marriage was originally unlawful or void.
Chapter 207: Section 30. Certificate of intention of marriage; dispensing with three days’ notice Section 30. Upon application by both of the parties to an intended marriage, when both parties are residents of the commonwealth or both parties are non-residents, or upon application of the party residing within the commonwealth when one of the parties is a resident and the other a non-resident, a judge of probate or a justice of a district court, or a special judge of probate and insolvency or special justice of a district court, may, after hearing such evidence as is presented, grant a certificate stating that in his opinion it is expedient that the intended marriage be solemnized without delay. Upon presentation of such a certificate, or, in extraordinary or emergency cases when the death of either party is imminent, upon the authoritative request of a minister, clergyman, priest, rabbi, authorized representative of a Spiritual Assembly of the Baha’is or attending physician, the clerk or registrar of the town where the notice of intention has been filed shall at once issue the certificate prescribed in section twenty-eight.
Chapter 207: Section 31. Certificate of intention of marriage; prohibition of alteration Section 31. No alteration or erasure shall be made by any person on the certificate under section twenty-eight until it has been returned to the clerk or registrar, and then only in such form and to such extent as he may prescribe. Any such certificate may be recorded after correction in accordance herewith.
Chapter 207: Section 32. Repealed, 1981, 684, Sec. 15 Chapter 207: Section 33. Repealed, 1981, 684, Sec. 16 Chapter 207: Section 33A. Proof of age Section 33A. If it appears from the statements made in the written notice of intention of marriage that a party to such intended marriage is under eighteen, the clerk or registrar shall not, except as required under section twenty-five, issue a certificate under section twenty-eight before receiving proof of the age of the parties. Such proof shall be contained in any of the following documents, graded and taking precedence in the order named: (1) an original or certified copy of a record of birth; (2) an original or certified copy of a baptismal record; (3) a passport; (4) a life insurance policy; (5) an employment certificate; (6) a school record; (7) an immigration record; (8) a naturalization record; or (9) a court record. Documentary evidence of a lower grade as aforesaid shall not be received by the clerk or registrar unless he is satisfied that evidence of a higher grade is not readily procurable. If no such documentary proof of age is procurable, the consent of the parent shall be sufficient. If the clerk or registrar has reasonable cause to believe that a party to an intended marriage represented to be eighteen or over, is under such age, he shall, before issuing such certificate, require documentary proof of age as aforesaid.
Chapter 207: Section 34. Minors residing in different towns; duplicate copies of notice of intention; fees Section 34. If it is necessary to give notice in two towns of the intention of marriage of a minor, the clerk or registrar who first takes the consent of the parent or guardian shall take it in duplicate, retaining one copy and delivering the other duly attested by him to the person obtaining the certificate, to be given to the clerk or registrar issuing the second certificate; and no fee shall be charged for such consent or copy.
Chapter 207: Section 35. Refusal of certificate Section 35. The clerk or registrar may refuse to issue a certificate if he has reasonable cause to believe that any of the statements contained in the notice of intention of marriage are incorrect; but he may, in his discretion, accept depositions under oath, made before him, which shall be sufficient proof of the facts therein stated to authorize the issuing of a certificate. He may also dispense with the statement of any facts required by law to be given in a notice of intention of marriage, if they do not relate to or affect the identification or age of the parties, or a former marriage of either party, if he is satisfied that the same cannot with reasonable effort be obtained.
Chapter 207: Section 36. Marriages without commonwealth by citizens; filing of certificate Section 36. Any resident of this commonwealth who marries outside the commonwealth and thereafter resides within the United States or any of its territories or possessions, or the spouse or heirs-at-law of such a person, may personally present to the town clerk or registrar of the town where such person was domiciled at the time of said marriage an original certificate, declaration or other written evidence of the same, or a photostatic copy thereof. The clerk or registrar may file such certificate, declaration, written evidence or photostatic copy as evidence establishing such marriage, or may make a copy thereof, which he shall attest as a true copy, and which he may then file as such evidence.
If such certificate, declaration, written evidence, photostatic copy or attested copy is not, in the opinion of the clerk or registrar, sufficient to establish such marriage, and he refuses to file the same, a judge of probate in the county wherein such town lies may, on petition and after a hearing, at which the clerk shall have an opportunity to be heard, order him to receive such certificate, declaration, written evidence, photostatic copy or attested copy as sufficient evidence to establish such marriage, whereupon such clerk or registrar shall file the same.
Chapter 207: Section 37. Impediments to marriage; list; posting Section 37. The commissioner of public health shall furnish to the clerk or registrar of every town a printed list of all legal impediments to marriage, and the clerk or registrar shall forthwith post and thereafter maintain it in a conspicuous place in his office.
Chapter 207: Section 38. Situs; persons authorized Section 38. A marriage may be solemnized in any place within the commonwealth by the following persons who are residents of the commonwealth: a duly ordained minister of the gospel in good and regular standing with his church or denomination, including an ordained deacon in The United Methodist Church or in the Roman Catholic Church; a commissioned cantor or duly ordained rabbi of the Jewish faith; by a justice of the peace if he is also clerk or assistant clerk of a city or town, or a registrar or assistant registrar, or a clerk or assistant clerk of a court or a clerk or assistant clerk of the senate or house of representatives, by a justice of the peace if he has been designated as provided in the following section and has received a certificate of designation and has qualified thereunder; an authorized representative of a Spiritual Assembly of the Baha’is in accordance with the usage of their community; a priest or minister of the Buddhist religion; a minister in fellowship with the Unitarian Universalist Association and ordained by a local church; a leader of an Ethical Culture Society which is duly established in the commonwealth and recognized by the American Ethical Union and who is duly appointed and in good and regular standing with the American Ethical Union; the Imam of the Orthodox Islamic religion; and, it may be solemnized in a regular or special meeting for worship conducted by or under the oversight of a Friends or Quaker Monthly Meeting in accordance with the usage of their Society; and, it may be solemnized by a duly ordained nonresident minister of the gospel if he is a pastor of a church or denomination duly established in the commonwealth and who is in good and regular standing as a minister of such church or denomination, including an ordained deacon in The United Methodist Church or in the Roman Catholic Church; and, it may be solemnized according to the usage of any other church or religious organization which shall have complied with the provisions of the second paragraph of this section.
Churches and other religious organizations shall file in the office of the state secretary information relating to persons recognized or licensed as aforesaid, and relating to usages of such organizations, in such form and at such times as the secretary may require.
Chapter 207: Section 39. Justice or non-resident clergymen Section 39. The governor may in his discretion designate a justice of the peace in each town and such further number, not exceeding one for every five thousand inhabitants of a city or town, as he considers expedient, to solemnize marriages, and may for a cause at any time revoke such designation. The state secretary, upon payment of twenty-five dollars to him by a justice of the peace so designated, who is also a clerk or an assistant clerk of a city or town or upon the payment of fifty dollars by any other such justice, shall issue to him a certificate of such designation.
The state secretary may authorize, subject to such conditions as he may determine, the solemnization of any specified marriage anywhere within the commonwealth by the following nonresidents: a minister of the gospel in good and regular standing with his church or denomination; a commissioned cantor or duly ordained rabbi of the Jewish faith; an authorized representative of a Spiritual Assembly of the Baha’is in accordance with the usage of their community; the Imam of the Orthodox Islamic religion; a duly ordained priest or minister of the Buddhist religion; a minister in fellowship with the Unitarian Universalist Association and ordained by a local church; a leader of an Ethical Culture Society which is recognized by the American Ethical Union and who is duly appointed and in good and regular standing with the American Ethical Union; a justice of a court or a justice of the peace authorized to solemnize a marriage by virtue of their office within their state of residence; and, it may be solemnized in a regular or special meeting for worship conducted by or under the oversight of a Friends or Quaker Monthly Meeting in accordance with the usage of their Society. A nonresident may solemnize a marriage according to the usage of any church or religious organization which shall have complied with the provisions of the second paragraph of section 38. A certificate of such authorization shall be issued by the state secretary and shall be attached to the certificate issued under section twenty-eight and filed with the appropriate city or town clerk. If one of the nonresidents enumerated above solemnizes a specified marriage anywhere within the commonwealth without having obtained a certificate under this section, the state secretary, upon application of such person, may issue a certificate validating such person’s acts. The certificate of validation shall be filed with the certificate issued under section twenty-eight of chapter two hundred and seven.
In addition to the foregoing, the governor may designate any other person to solemnize a particular marriage on a particular date and in a particular city or town, and may for cause at any time revoke such designation. The state secretary, upon the payment to him of twenty-five dollars by said other person, shall issue to said person a certificate of such designation. Such certificate shall expire upon completion of such solemnization.
Chapter 207: Section 4. Polygamy Section 4. A marriage contracted while either party thereto has a former wife or husband living, except as provided in section six and in chapter two hundred and eight, shall be void.
Chapter 207: Section 40. Records of marriages; keeping; returns Section 40. Every justice of the peace, minister of the gospel, minister of the Unitarian Universalist Association, rabbi, secretary of a Spiritual Assembly of the Baha’is, leader of an Ethical Culture Society, duly ordained priest or minister of the Buddhist religion, Imam of the Orthodox Islamic religion, clerk or keeper of the records of a meeting wherein marriages among Friends or Quakers are solemnized, nonresident justice of a court and any person authorized to solemnize marriages according to the usage of any other church or religious organization which shall have complied with the provisions of the second paragraph of section thirty-eight shall make and keep a record of each marriage solemnized by him, or in such meeting, and of all facts relative to the marriage required to be recorded by section one of chapter forty-six. He shall also return each certificate issued under section twenty-eight no later than the tenth day of the month following each month in which marriages are solemnized by him to the clerk or registrar who issued the same. Each certificate and copy so returned shall contain a statement giving the place and date of marriage, attested by the signature of the person who solemnized the same, or of said secretary of a Spiritual Assembly of the Baha’is or of said leader of an Ethical Culture Society, or of said duly ordained priest or minister of the Buddhist religion, or Imam of the Orthodox Islamic religion, or of said clerk or keeper of the records of a Friends or Quaker Monthly Meeting or any person authorized to solemnize marriages according to the usage of any other church or religious organization which shall have complied with the provisions of the second paragraph of section thirty-eight. The person who solemnized the marriage shall add the title of the office by virtue of which the marriage was solemnized, as “justice of the peace”, “minister of the gospel”, “clergyman”, “priest”, “rabbi”, “authorized representative of a Spiritual Assembly”, “leader of an Ethical Culture Society”, or “duly ordained priest or minister of the Buddhist religion”, or “Imam of the Orthodox Islamic religion”, or other appropriate title, and his residence. All certificates or copies so returned shall be recorded by the clerk or registrar receiving them.
Chapter 207: Section 41. Imperfect certificates of marriage; correction Section 41. If a certificate of marriage is found, upon its return to the clerk or registrar, to have been incorrectly filled out by the person who solemnized a marriage under it, the clerk or registrar shall have it corrected and shall enforce the penalties provided by law relative thereto. Such imperfect certificates shall be recorded and indexed by the clerk or registrar.
Chapter 207: Section 42. Irregular solemnization; validity of marriage Section 42. A marriage solemnized by a person professing to have the authority to solemnize marriages under section thirty-eight or thirty-nine shall not be void, nor shall the validity thereof be in any way affected by want of authority in such person or society, or by an omission or by informality in the manner of filing the notice of intention, if the marriage is in other respects lawful and is consummated with a full belief of either of the persons so married that they have been lawfully married.
Chapter 207: Section 43. Marriage by consul Section 43. Marriages solemnized in a foreign country by a consul or diplomatic agent of the United States shall be valid in this commonwealth.
Chapter 207: Section 44. Fees Section 44. A city by ordinance and a town by vote may authorize its clerk or registrar to pay on demand, in his office, twenty-five cents to any person who has legally solemnized a marriage in the commonwealth, after the receipt by such clerk or registrar of the certificate in legal form of the solemnization of such marriage. A city or town which passes such ordinance or vote shall annually appropriate the money necessary therefor, and the clerk or registrar thereof shall file quarterly with the treasurer or other proper financial officer of said city or town proper vouchers for all such payments.
Chapter 207: Section 45. Record Section 45. The record of a marriage made and kept as provided by law by the person by whom the marriage was solemnized, or by the clerk or registrar, or a copy thereof duly certified, shall be prima facie evidence of such marriage.
Chapter 207: Section 46. Certificate of consul Section 46. A copy of the record of a marriage solemnized by a consul or diplomatic agent of the United States or a certificate from such consul or agent shall be prima facie evidence of such marriage.
Chapter 207: Section 47. Admissions; repute; cohabitation Section 47. Marriage may be proved by evidence of an admission thereof by an adverse party, by evidence of general repute or of cohabitation of the parties as married persons, or of any other fact from which it may be inferred.
Chapter 207: Section 47A. Abolition of right Section 47A. Breach of contract to marry shall not constitute an injury or wrong recognized by law, and no action, suit or proceeding shall be maintained therefor.
Chapter 207: Section 47B. Alienation of affection and criminal conversation not actionable Section 47B. Alienation of affection and criminal conversation shall not constitute an injury or wrong recognized by law, and no action, suit or proceeding shall be maintained therefor.
Chapter 207: Section 48. Solemnization of marriage without authority Section 48. Whoever, not being duly authorized by the laws of the commonwealth, undertakes to join persons in marriage therein shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year, or both.
Chapter 207: Section 49. Joining persons in marriage without certificate Section 49. Whoever, being duly authorized to solemnize marriages in the commonwealth, joins in marriage persons who have not complied with the laws relative to procuring certificates of notice of intention of marriage shall be punished by a fine of not more than five hundred dollars.
Chapter 207: Section 5. Repealed, 1986, 599, Sec. 52 Chapter 207: Section 50. Knowingly issuing certificate or performing marriage in evasion of laws of foreign state Section 50. Any official issuing a certificate of notice of intention of marriage knowing that the parties are prohibited by section eleven from intermarrying, and any person authorized to solemnize marriage who shall solemnize a marriage knowing that the parties are so prohibited, shall be punished by a fine of not less than one hundred or more than five hundred dollars or by imprisonment for not more than one year, or both.
Chapter 207: Section 51. Violation of certain provisions of this chapter Section 51. Violations of any provision of section seven, twenty-six or thirty-four, shall, upon complaint made within one year thereafter, be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year, or both.
Chapter 207: Section 52. Violation of law concerning making notice of intention; false statements Section 52. Whoever violates any provision of section twenty, and whoever falsely swears or affirms in making any statement required under section twenty, shall be punished by a fine of not more than one hundred dollars.
Chapter 207: Section 53. Certificate of intention of marriage; issuance to nonage persons Section 53. A clerk or registrar issuing a certificate of intention of marriage contrary to section thirty-three shall forfeit not more than one hundred dollars.
Chapter 207: Section 54. Certificate of intention of marriage; illegal alteration Section 54. Whoever makes an illegal alteration or erasure on a certificate of intention of marriage shall be punished by a fine of not more than one hundred dollars.
Chapter 207: Section 55. Repealed, 1946, 273, Sec. 2 Chapter 207: Section 56. Records and returns of marriages; failure to make Section 56. Whoever neglects to make the record and returns required by section forty shall forfeit not less than twenty nor more than one hundred dollars.
Chapter 207: Section 57. Certificate of intention of marriage; failure to return Section 57. Whoever performs a ceremony of marriage upon a certificate more than sixty days after the filing of the notice of intention of marriage as set forth in such certificate, and whoever having taken out such certificate and not having used it fails to return it, within sixty days after such filing, to the office issuing the same, shall be punished by a fine of not more than ten dollars.
Chapter 207: Section 58. Advertising to perform marriage ceremony; business cards Section 58. A justice of the peace or other person authorized to solemnize marriages may advertise his name or any trade name, business address, telephone number, rate of compensation as provided by law, regular hours of availability and any ability in a second language and any present or former professional affiliation, in any newspaper, magazine, telephone directory or other publication of general circulation. Whoever advertises to perform or to procure the performance of a marriage ceremony by any other means shall be punished by a fine of not less than ten nor more than one hundred dollars; provided, however, that this section shall not be construed to prohibit the use of a business card by a justice of the peace or other person authorized to perform marriage ceremonies; and provided, further, that if a justice of the peace uses a business card said card shall not display the seal of the commonwealth.
Chapter 207: Section 6. Marriage during existence of former marriage; validity Section 6. If a person, during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents.
Chapter 207: Section 7. Minors; solemnization of marriage Section 7. A magistrate or minister shall not solemnize a marriage if he has reasonable cause to believe that a party to the intended marriage is under eighteen unless the provisions of sections twenty-four and twenty-five have been satisfied.
Chapter 207: Section 8. Marriages void without judgment Section 8. A marriage solemnized within the commonwealth which is prohibited by reason of consanguinity or affinity between the parties, or of either of them having a former wife or husband living, shall be void without a judgment of divorce or other legal process.
Chapter 207: Section 9. Repealed, 1977, 581, Sec. 1 Chapter 208: Section 1. General provisions Section 1. A divorce from the bond of matrimony may be adjudged for adultery, impotency, utter desertion continued for one year next prior to the filing of the complaint, gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs, cruel and abusive treatment, or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse, or for an irretrievable breakdown of the marriage as provided in sections one A and B; provided, however, that a divorce shall be adjudged although both parties have cause, and no defense upon recrimination shall be entertained by the court.
Chapter 208: Section 10. Repealed, 1975, 400, Sec. 17 Chapter 208: Section 11. Ex parte hearing; allowance or denial of motion to insert name of third person Section 11. The evidence produced at such ex parte hearing shall not be reported or made a part of the record in the case and the motion for said amendment shall not be read in open court during the proceedings, but the register of probate shall make an entry in the docket of “Motion to insert name of third person allowed” or “Motion to insert name of third person denied”, as the case may be. If the amendment is allowed upon affidavits, they shall be retained in the court and placed in the custody of the register, and shall be open for the purposes of inspection, and taking copies thereof, to counsel of record, the parties or the third person named in the amendment.
Chapter 208: Section 12. Spouse’s property; attachment Section 12. Upon an action for divorce by either spouse for a cause accruing after marriage, the real and personal property of the other spouse may be attached to secure suitable support and maintenance to the plaintiff and to such children as may be committed to his care and custody.
Chapter 208: Section 13. Attachment; manner Section 13. The attachment may be made upon the summons issued upon the action, in the same manner as attachments are made upon writs in actions at law, for an amount which shall be expressed in the summons or order of notice. The attachment may be made by trustee process, in which case there shall be inserted in the summons or order of notice a direction to attach the goods, effects and credits of the defendant in the hands of the alleged trustee, and service shall be made upon the trustee by copy. If attachment is made by trustee process, the action shall be filed as provided in section six notwithstanding the provisions of section two of chapter two hundred and forty-six. The court may in such cases make all necessary orders to secure to the trustee his costs. The attachment may be made by injunction, as in suits in equity, to reach shares of stock or other property which cannot be reached to be attached as in an action at law, and the property so attached may thereafter, by appropriate order, be applied to the satisfaction of any order or decree for the payment of money by one spouse to the other for his support and maintenance or that of the children.
Chapter 208: Section 14. Attachments; laws applicable Section 14. The laws relative to attachments of real or personal property shall apply to attachments herein provided for, so far as they are consistent with the two preceding sections.
Chapter 208: Section 15. Mentally ill defendant; appointment and compensation of guardian Section 15. If during the pendency of an action for divorce the defendant is incapacitated by reason of mental illness, the court shall appoint a suitable guardian to appear and answer in like manner as a guardian for an infant defendant in any civil action may be appointed. The compensation of such guardian shall be determined by the court, and, together with his necessary expenses, shall be paid by the plaintiff if the court so orders.
Chapter 208: Section 16. Investigation of divorce case Section 16. Any judge of a probate court wherein any action for divorce is pending may appoint an attorney to investigate and report to the court in relation thereto and may direct such attorney, or any other attorney, to defend the action. The attorney may be appointed either before or after a judgment of divorce nisi has been granted, and may enter objections to such judgment nisi becoming absolute in the same manner as the defendant. His compensation shall be fixed by the court, and shall be paid by the commonwealth, together with any expenses approved by the court, upon certificate by a justice to the state treasurer. The state police, local police and probation officers shall assist the attorneys so appointed, upon his request.
Chapter 208: Section 17. Pendency of action; allowance; alimony Section 17. The court may require either party to pay into court for the use of the other party during the pendency of the action an amount to enable him to maintain or defend the action, and to pay to him alimony during the pendency of the action. When the court makes an order for alimony on behalf of a party, and such party is not a member of a private group health insurance plan, the court shall include in such order for alimony a provision relating to health insurance, which provision shall be in accordance with section thirty-four.
Chapter 208: Section 18. Pendency of action for divorce; protection of personal liberty of spouse; restraint orders authorized Section 18. The probate court in which the action for divorce is pending may, upon petition of the wife, prohibit the husband, or upon petition of the husband, prohibit the wife from imposing any restraint upon her or his personal liberty during the pendency of the action for divorce. Upon the petition of the husband or wife or the guardian of either, the court may make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty.
Chapter 208: Section 19. Pendency of action for divorce; custody of children Section 19. The court may in like manner, upon application of either party or of a next friend in behalf of the minor children of the parties, make such order relative to the care and custody of such children during the pendency of the action for divorce as it may consider expedient and for their benefit.
Chapter 208: Section 1A. Irretrievable breakdown of marriage; commencement of action; complaint accompanied by statement and dissolution agreement; procedure Section 1A. An action for divorce on the ground of an irretrievable breakdown of the marriage may be commenced with the filing of: (a) a petition signed by both joint petitioners or their attorneys; (b) a sworn affidavit that is either jointly or separately executed by the petitioners that an irretrievable breakdown of the marriage exists; and (c) a notarized separation agreement executed by the parties except as hereinafter set forth and no summons or answer shall be required. After a hearing on a separation agreement which has been presented to the court, the court shall, within thirty days of said hearing, make a finding as to whether or not an irretrievable breakdown of the marriage exists and whether or not the agreement has made proper provisions for custody, for support and maintenance, for alimony and for the disposition of marital property, where applicable. In making its finding, the court shall apply the provisions of section thirty-four, except that the court shall make no inquiry into, nor consider any evidence of the individual marital fault of the parties. In the event the notarized separation agreement has not been filed at the time of the commencement of the action, it shall in any event be filed with the court within ninety days following the commencement of said action.
If the finding is in the affirmative, the court shall approve the agreement and enter a judgment of divorce nisi. The agreement either shall be incorporated and merged into said judgment or by agreement of the parties, it shall be incorporated and not merged, but shall survive and remain as an independent contract. In the event that the court does not approve the agreement as executed, or modified by agreement of the parties, said agreement shall become null and void and of no further effect between the parties; and the action shall be treated as dismissed, but without prejudice. Following approval of an agreement by the court but prior to the entry of judgment nisi, said agreement may be modified in accordance with the foregoing provisions at any time by agreement of the parties and with the approval of the court, or by the court upon the petition of one of the parties after a showing of a substantial change of circumstances; and the agreement, as modified, shall continue as the order of the court.
Thirty days from the time that the court has given its initial approval to a dissolution agreement of the parties which makes proper provisions for custody, support and maintenance, alimony, and for the disposition of marital property, where applicable, notwithstanding subsequent modification of said agreement, a judgment of divorce nisi shall be entered without further action by the parties.
Nothing in the foregoing shall prevent the court, at any time prior to the approval of the agreement by the court, from making temporary orders for custody, support and maintenance, or such other temporary orders as it deems appropriate, including referral of the parties and the children, if any, for marriage or family counseling.
Prior to the entry of judgment under this section, the petition may be withdrawn by mutual agreement of the parties.
An action commenced under this section shall be placed by the register of probate for the county in which the action is so commenced on a hearing list separate from that for all other actions for divorce brought under this chapter, and shall be given a speedy hearing on the dissolution agreement insofar as that is consistent with the wishes of the parties.
Chapter 208: Section 1B. Irretrievable breakdown of marriage; commencement of action; waiting period; unaccompanied complaint; procedure Section 1B. An action for divorce on the ground of an irretrievable breakdown of the marriage may be commenced by the filing of the complaint unaccompanied by the signed statement and dissolution agreement of the parties required in section one A.
No earlier than six months after the filing of the complaint, there shall be a hearing and the court may enter a judgment of divorce nisi if the court finds that there has existed, for the period following the filing of the complaint and up to the date of the hearing, a continuing irretrievable breakdown of the marriage.
Notwithstanding the foregoing, at the election of the court hereunder, the aforesaid six month period may be waived to allow the consolidation for the purposes of hearing a complaint commenced under this section with a complaint for divorce commenced by the opposing party under section one.
The filing of a complaint for divorce under this section shall not affect the ability of the defendant to obtain a hearing on a complaint for divorce filed under section one, even if the aforesaid six month period has not yet expired.
Said six month period shall be determined from the filing of a complaint for divorce. In the event that a complaint for divorce is commenced in accordance with the provisions of section one A or is for a cause set forth under section one, and said complaint is later amended to set forth the ground established in this section, the six month period herein set forth shall be computed from the date of the filing of said complaint.
As part of the entry of the judgment of divorce nisi, appropriate orders shall be made by the court with respect to custody, support and maintenance of children, and, in accordance with the provisions of section thirty-four, for alimony and for the disposition of marital property.
Nothing in the foregoing shall prevent the court, at any time prior to judgment, from making temporary orders for custody, support and maintenance or such other temporary orders as it deems appropriate, including referral of the parties and the children, if any, for marriage or family counseling.
Prior to the entry of judgment under this section, in the event that the parties file the statement and dissolution agreement as required under section one A hereinabove, then said action for divorce shall proceed under said section one A.
Chapter 208: Section 2. Confinement for crime Section 2. A divorce may also be adjudged if either party has been sentenced to confinement for life or for five years or more in a federal penal institution or in a penal or reformatory institution in this or any other state; and, after a divorce for such cause, no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights.
Chapter 208: Section 20. Continuance of action; temporary separation Section 20. The court may, without entering a judgment of divorce, order the action continued upon the docket from time to time, and during such continuance may make orders relative to a temporary separation of the parties, the separate maintenance of either spouse and the custody and support of minor children. Such orders may be changed or annulled as the court may determine, and shall, while they are in force, supersede any order of the probate court under section thirty-two of chapter two hundred and nine and may suspend the right of said court to act under said section. When the court makes an order for maintenance of a spouse or support of a minor child, and such spouse or child is not a member of a private group health insurance plan, the court shall include in such order a provision relating to health insurance, which provision shall be in accordance with section thirty-four.
Chapter 208: Section 20A. Judgment denying divorce; living apart for justifiable cause; authorization Section 20A. If, after a hearing, the allegations of an action for divorce are not sustained, the court may, if the facts warrant, enter a judgment denying the divorce and making a finding that the plaintiff is living apart from the defendant for justifiable cause, and may make such order relative to the support of either spouse and the care, custody of and maintenance of the minor children of the parties as the circumstances require. The various provisions of chapter two hundred and nine which relate to proceedings commenced under section thirty-two thereof shall be applicable to this section.
Chapter 208: Section 21. Divorce judgments; entry Section 21. Judgments of divorce shall in the first instance be judgments nisi, and shall become absolute after the expiration of ninety days from the entry thereof, unless the court within said period, for sufficient cause, upon application of any party to the action, otherwise orders. After the entry of a judgment nisi, the action shall not be dismissed or discontinued on motion of either party except upon such terms, if any, as the court may order after notice to the other party and a hearing, unless there has been filed with the court a memorandum signed by both parties, wherein they agree to such disposition of the action.
Chapter 208: Section 22. Desertion; proof Section 22. In order to establish grounds for divorce for desertion, the plaintiff shall establish that the defendant left voluntarily and without justification and with intent not to return, that at the time such defendant left, the plaintiff did not consent thereto, and that the defendant failed to cohabit with the plaintiff for at least one year next prior to the date of the filing of the action. An action for divorce for desertion shall not be defeated by a temporary return or other act of the defendant if the court finds that such return or other act was not made or done in good faith, but with intent to defeat such action. The prior filing of an action for divorce or separate support shall not be deemed to raise a conclusive presumption to defeat an action for divorce for desertion.
Chapter 208: Section 23. Resumption of former name by woman Section 23. The court granting a divorce may allow a woman to resume her maiden name or that of a former husband.
Chapter 208: Section 24. Divorced parties; remarriage Section 24. After a judgment of divorce has become absolute, either party may marry again as if the other were dead.
Chapter 208: Section 24A. Certificate of divorce; contents Section 24A. The court, in issuing a copy of, or a certificate relating to, a decree of divorce entered by it, shall cause to be printed or written thereon the provisions of sections twenty-one and twenty-four.
Chapter 208: Section 25. Divorce for adultery of wife; legitimacy of issue Section 25. A divorce for adultery committed by the wife shall not affect the legitimacy of the issue of the marriage, but such legitimacy, if questioned, shall be tried and determined according to the course of the common law.
Chapter 208: Section 26. Repealed, 1949, 76, Sec. 1 Chapter 208: Section 27. Curtesy or dower after divorce Section 27. After a divorce, a husband or wife shall not be entitled to curtesy or dower in the land of the other spouse.
Chapter 208: Section 28. Children; care, custody and maintenance; child support obligations; provisions for education and health insurance; parents convicted of first degree murder Section 28. Upon a judgment for divorce, the court may make such judgment as it considers expedient relative to the care, custody and maintenance of the minor children of the parties and may determine with which of the parents the children or any of them shall remain or may award their custody to some third person if it seems expedient or for the benefit of the children. In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice for administration and management, and there shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. Upon a complaint after a divorce, filed by either parent or by a next friend on behalf of the children after notice to both parents, the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children. In furtherance of the public policy that dependent children shall be maintained as completely as possible from the resources of their parents and upon a complaint filed after a judgment of divorce, orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines promulgated by the chief justice for administration and management or if there is a need to provide for the health care coverage of the child. A modification to provide for the health care coverage of the child shall be entered whether or not a modification in the amount of child support is necessary. There shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. The order shall be modified accordingly unless the inconsistency between the amount of the existing order and the amount of the order that would result from application of the guidelines is due to the fact that the amount of the existing order resulted from a rebuttal of the guidelines and that there has been no change in the circumstances which resulted in such rebuttal; provided, however, that even if the specific facts that justified departure from the guidelines upon entry of the existing order remain in effect, the order shall be modified in accordance with the guidelines unless the court finds that the guidelines amount would be unjust or inappropriate under the circumstances and that the existing order is consistent with the best interests of the child. A modification of child support may enter notwithstanding an agreement of the parents that has independent legal significance. If the IV-D agency as set forth in chapter 119A is responsible for enforcing a case, an order may also be modified in accordance with the procedures set out in section 3B of said chapter 119A. The court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three, if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree. When the court makes an order for maintenance or support of a child, said court shall determine whether the obligor under such order has health insurance or other health coverage on a group plan available to him through an employer or organization or has health insurance or other health coverage available to him at a reasonable cost that may be extended to cover the child for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor exercise the option of additional coverage in favor of the child or obtain coverage for the child.
When a court makes an order for maintenance or support, the court shall determine whether the obligor under such order is responsible for the maintenance or support of any other children of the obligor, even if a court order for such maintenance or support does not exist, or whether the obligor under such order is under a preexisting order for the maintenance or support of any other children from a previous marriage, or whether the obligor under such order is under a preexisting order for the maintenance or support of any other children born out of wedlock. If the court determines that such responsibility does, in fact, exist and that such obligor is fulfilling such responsibility such court shall take into consideration such responsibility in setting the amount to paid under the current order for maintenance or support.
No court shall make an order providing visitation rights to a parent who has been convicted of murder in the first degree of the other parent of the child who is the subject of the order, unless such child is of suitable age to signify his assent and assents to such order; provided, further, that until such order is issued, no person shall visit, with the child present, a parent who has been convicted of murder in the first degree of the other parent of the child without the consent of the child’s custodian or legal guardian.
Chapter 208: Section 28A. Temporary care; custody and maintenance of minor children Section 28A. During the pendency of an action seeking a modification of a judgment for divorce, upon motion of either party or of a next friend on behalf of the minor children of the parties and notice to the other party or parties, the court may make temporary orders relative to the care, custody and maintenance of such children. Every order entered relative to care and custody shall include specific findings of fact made by the court which clearly demonstrate the injury, harm or damage that might reasonably be expected to occur if relief pending a judgment of modification is not granted. An order entered relative to care and custody, pursuant to this section, may only be entered without advance notice if the court finds that an emergency exists, the nature of which requires the court to act before the opposing party or parties can be heard in opposition. In all such cases, such order shall be for a period not to exceed five days and written notice of the issuance of any such order and the reasons therefor shall be given to the opposing party or parties together with notice of the date, time and place that a hearing on the continuation of such order will be held.
Chapter 208: Section 29. Minor children; foreign divorces, care and custody Section 29. If, after a divorce has been adjudged in another jurisdiction, minor children of the marriage are inhabitants of, or residents in this commonwealth, the probate court for the county in which said minors or any of them are inhabitants or residents, upon an action of either parent or of a next friend in behalf of the children, after notice to both parents, shall have the same power to make judgments relative to their care, custody, education and maintenance, and to revise and alter such judgments or make new judgments, as if the divorce had been adjudged in this commonwealth.
Chapter 208: Section 3. Absence; presumption of death Section 3. A divorce may be adjudged for any of the causes allowed by sections one, one B, or two although the defendant has been continuously absent for such time and under such circumstances as would raise a presumption of death.
Chapter 208: Section 30. Minor children; removal from commonwealth; prohibition Section 30. A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. The court, upon application of any person in behalf of such child, may require security and issue writs and processes to effect the purposes of this and the two preceding sections.
Chapter 208: Section 31. Custody of children; shared custody plans Section 31. For the purposes of this section, the following words shall have the following meaning unless the context requires otherwise:“Sole legal custody”, one parent shall have the right and responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.
“Shared legal custody”, continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.
“Sole physical custody”, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.
“Shared physical custody”, a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.
In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health.
Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody.
In determining whether temporary shared legal custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters concerning the child.
If, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.
There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A.
At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child’s education; the child’s health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.
At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.
Provisions regarding shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.
An award of shared legal or physical custody shall not affect a parent’s responsibility for child support. An order of shared custody shall not constitute grounds for modifying a support order absent demonstrated economic impact that is an otherwise sufficient basis warranting modification.
The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent.
Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.
Chapter 208: Section 31A. Visitation and custody orders; consideration of abuse toward parent or child; best interest of child Section 31A. In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, “abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury. “Serious incident of abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. For purposes of this section, “bodily injury” and “serious bodily injury” shall have the same meanings as provided in section 13K of chapter 265.
A probate and family court’s finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this section, “an abusive parent” shall mean a parent who has committed a pattern of abuse or a serious incident of abuse.
For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admissible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the probate and family court that a pattern or serious incident of abuse has occurred.
If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child’s best interests and provides for the safety and well-being of the child.
If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and the safety of the abused parent. The court may consider:(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;(b) ordering visitation supervised by an appropriate third party, visitation center or agency;(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;(e) ordering the abusive parent to pay the costs of supervised visitation;(f) prohibiting overnight visitation;(g) requiring a bond from the abusive parent for the return and safety of the child;(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.
Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearings.
Chapter 208: Section 32. Child; bringing before court; writ of habeas corpus Section 32. Any court having jurisdiction of actions for divorce or nullity of marriage, separate support, or maintenance, or of any other proceeding in which the care and custody of any child is drawn in question, may issue a writ of habeas corpus to bring before it such child. The writ may be made returnable forthwith before the court by which it is issued, and, upon its return, said court may make any appropriate order or judgment relative to the child who may thus be brought before it.
Chapter 208: Section 33. Jurisdiction; procedure Section 33. The court may, if the course of proceeding is not specially prescribed, hear and determine all matters coming within the purview of this chapter according to the course of proceedings in ecclesiastical courts or in courts of equity, and may issue process of attachment and execution and all other proper and necessary processes. In such proceedings the court shall have jurisdiction in equity of all causes cognizable under the general principles of equity jurisprudence, arising between husband and wife, such jurisdiction to be exercised in accordance with the usual course of practice in equity proceedings.
Chapter 208: Section 34. Alimony or assignment of estate; determination of amount; health insurance Section 34. Upon divorce or upon a complaint in an action brought at any time after a divorce, whether such a divorce has been adjudged in this commonwealth or another jurisdiction, the court of the commonwealth, provided there is personal jurisdiction over both parties, may make a judgment for either of the parties to pay alimony to the other. In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance. In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse, or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the obligor’s cost for health insurance coverage for the spouse.
Chapter 208: Section 34A. Alimony judgment ordering conveyance; effect Section 34A. Whenever a judgment for alimony shall be made in a proceeding for divorce directing that a deed, conveyance or release of any real estate or interest therein shall be made such judgment shall create an equitable right to its enforcement, subject to the provisions for recording of notice in section fifteen of chapter one hundred and eighty-four, in the party entitled thereto by the judgment, and if the judgment has not been complied with at the time the judgment of divorce becomes absolute, and is thereafter recorded in the manner provided by section forty-four of chapter one hundred and eighty-three, then the judgment itself shall operate to vest title to the real estate or interest therein in the party entitled thereto by the judgment as fully and completely as if such deed, conveyance or release had been duly executed by the party directed to make it.
No assignment, transfer or conveyance, from one spouse to the other, under this section or under a separation agreement, of real estate which is encumbered by a mortgage shall be deemed a transfer or divestment of said mortgage under the provisions of mortgage covenants, which provide that the debt secured by said mortgage becomes due and payable on demand upon transfer or divestment to anyone other than the mortgagor.
Chapter 208: Section 34B. Order to vacate marital home Section 34B. Any court having jurisdiction of actions for divorce, or for nullity of marriage or of separate support or maintenance, may, upon commencement of such action and during the pendency thereof, order the husband or wife to vacate forthwith the marital home for a period of time not exceeding ninety days, and upon further motion for such additional certain period of time, as the court deems necessary or appropriate if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order. The opposing party shall be given at least three days’ notice of such hearing and may appear and be heard either in person or by his attorney. If the moving party demonstrates a substantial likelihood of immediate danger to his or her health, safety or welfare or to that of such minor children from the opposing party, the court may enter a temporary order without notice, and shall immediately thereafter notify said opposing party and give him or her an opportunity to be heard as soon as possible but not later than five days after such order is entered on the question of continuing such temporary order. The court may issue an order to vacate although the opposing party does not reside in the marital home at the time of its issuance, or if the moving party has left such home and has not returned there because of fear for his or her safety or for that of any minor children.
Chapter 208: Section 34C. Orders to vacate marital home and orders of restraint; notice to law enforcement agencies; procedures; violations Section 34C. Whenever a division of the probate and family court department issues an order to vacate under the provisions of section thirty-four B, or an order prohibiting a person from imposing any restraint on the personal liberty of another person under section eighteen or under the provisions of section thirty-two of chapter two hundred and nine or section three, four or five of chapter two hundred and nine A or section fifteen or twenty of chapter two hundred and nine C or an order for custody pursuant to any abuse prevention action, the register shall transmit two certified copies of each order forthwith to the appropriate law enforcement agency which shall serve one copy of each such order upon the defendant. Unless otherwise ordered by the court, service shall be by delivering a copy in hand to the defendant. Law enforcement officers shall use every reasonable means to enforce such order. Law enforcement agencies shall establish procedures adequate to insure that an officer at the scene of an alleged violation of such order may be informed of the existence and terms of such order.
The court shall notify the appropriate law enforcement agency in writing whenever any such order is vacated by the court and shall direct the agency to destroy all records of such vacated order and such agency shall comply with such directive.
Any violation of such order shall be punishable by a fine of not more than five thousand dollars or by imprisonment for not more than two and one-half years in the house of correction, or both such fine and imprisonment. Each such order issued shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.
Any such violation may be enforced in the superior or district or Boston municipal court departments. Criminal remedies provided herein are not exclusive and do not preclude any other available civil or criminal remedies. The superior, probate and family, district and Boston municipal court departments may each enforce by civil contempt procedure a violation of its own court order.
Chapter 208: Section 34D. Request for restraining order or order to vacate marital home; information provided to petitioner upon filing; domestic violence record search; outstanding warrants Section 34D. Upon the filing of a request for a restraining order pursuant to section eighteen or for an order for a spouse to vacate the marital home pursuant to section thirty-four B, a petitioner shall be informed that the proceedings hereunder are civil in nature and that violations of orders issued hereunder are criminal in nature. Further, a petitioner shall be given information prepared by the appropriate district attorney’s office that other criminal proceedings may be available and such petitioner shall be instructed by such district attorney’s office relative to the procedures required to initiate such criminal proceedings including, but not limited to, the filing of a complaint for a violation of section forty-three of chapter two hundred and sixty-five. Whenever possible, a petitioner shall be provided with such information in the petitioner’s native language.
When considering a request for a restraining order pursuant to section eighteen or for an order for a spouse to vacate the marital home pursuant to section thirty-four B, a judge shall cause a search to be made of the records contained within the statewide domestic violence record keeping system maintained by the office of the commissioner of probation and shall review the resulting data to determine whether the named defendant has a civil or criminal record involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against the named defendant, a judge shall order that the appropriate law enforcement officials be notified and shall order that any information regarding the defendant’s most recent whereabouts shall be forwarded to such officials. In all instances where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner. In all instances where such an imminent threat of bodily injury is found to exist, the judge shall notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable.
Chapter 208: Section 35. Alimony; enforcement Section 35. The court may enforce judgments, including foreign decrees, for allowance, alimony or allowance in the nature of alimony, in the same manner as it may enforce judgments in equity.
Chapter 208: Section 36. Security for payment of alimony or support; enforcement of judgments or orders Section 36. When alimony or support is adjudged for the spouse or children, the court may require sufficient security for its payment according to the judgment. Each judgment or order of support which is issued, reviewed or modified pursuant to this chapter shall conform to and shall be enforced in accordance with the provisions of section twelve of chapter one hundred and nineteen A.
Chapter 208: Section 36A. Continuing jurisdiction to enforce alimony, support and maintenance or child support; order for trustee process Section 36A. (1) In any case in which an obligor is under court order to pay alimony or support and maintenance or child support in an action or judgment for divorce under this chapter or in an action or judgment for separate support under chapter two hundred and nine, the court which entered the support order shall retain continuing jurisdiction over the parties to the order and may enter an order of trustee process against the disposable earnings of the obligor, both those presently due and owing and those which will be due and owing at a future time, up to an amount permitted by federal law. Before the court may enter such an order, it shall find that all other domestic remedies available to collect support have been exhausted or would be ineffective.
For the purpose of this section, the words “disposable earnings” shall mean that part of the compensation paid or payable to the obligor for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, including periodic payments pursuant to a pension or retirement program, which remains after the deduction of any amounts required by law to be withheld; and the word “trustee” shall mean the person, firm, association, or corporation by whom the obligor is employed.
(2) A complaint seeking an order of trustee process may be sought by the spouse or parent, custodian or guardian of the child, a family service officer or probation officer, or in the case of persons receiving public assistance, the department of public welfare. The complaint will be filed in the court which issued the judgment of divorce or separate support or in which the action for divorce or separate support is pending under the docket number of the action for divorce or separate support and shall state that the obligor is under a court order to provide support, the amount of the order, the amount of the arrearage, if any; that all other domestic remedies available to collect support have been exhausted or would be ineffective; the name and address of the employer of the obligor; the obligor’s monthly disposable earnings from said employer, which may be based upon information and belief, and the amount sought to be trusteed. The complaint shall be served on both the obligor and his employer in accordance with applicable law and rules for service of process; provided, however, that where the court had personal jurisdiction over the obligor in the original action for divorce or separate support, personal service on such obligor shall not be required as long as the obligor receives adequate and reasonable notice of the proceeding.
(3) After a hearing on the merits, the court may enter an order of trustee process against the obligor’s disposable earnings. The order shall set forth sufficient findings of fact to support the action by the court and the amount to be trusteed for each pay period. The order shall be subject to review by the court for modification and dissolution upon the filing of a motion, with a sworn affidavit supporting same.
(4) Upon receipt of an order for trustee process, the trustee shall transmit each pay period without delay to the clerk of the court, or to the family service office of the court or any other party designated by the court, the amount ordered by the court to be trusteed for each such period. These funds shall be disbursed to the party designated by the court. If the person entitled to receive said support is a recipient of public assistance, such funds shall be disbursed directly to the department of public welfare up to the amount of aid being paid to the recipient by the department.
(5) No employer may discharge, suspend, or discipline an employee by reason of his having been trusteed pursuant to this section. Any employer who violates this clause shall be liable to the employee for compensation and employment benefits lost, if any, during the time of the unlawful discharge, suspension, or discipline.
(6) The commonwealth and any of its political sub-divisions shall be subject to trustee process under this section as if they were private parties.
(7) Any remedy provided pursuant to this section shall be in addition to, and not in lieu of, any other remedy available for the enforcement of support obligations.
Chapter 208: Section 37. Alimony; revision of judgment Section 37. After a judgment for alimony or an annual allowance for the spouse or children, the court may, from time to time, upon the action for modification of either party, revise and alter its judgment relative to the amount of such alimony or annual allowance and the payment thereof, and may make any judgment relative thereto which it might have made in the original action.
The court, provided there is personal jurisdiction over both parties, may modify and alter a foreign judgment, decree, or order of divorce or separate support where the foreign court did not have personal jurisdiction over both parties upon the entry of such judgment, decree or order.
The court, provided there is personal jurisdiction over both parties to a foreign judgment, decree, or order of divorce for support, where such foreign court had personal jurisdiction over both parties, may modify and alter such foreign judgment, decree, or order only to the extent it is modifiable or alterable under the laws of such foreign jurisdiction; provided, however, that if both parties are domiciliaries of the commonwealth, then the court may modify and alter the foreign judgment in the same manner as it could have had the judgment, order, or decree been issued by the court; and provided further, that the court may not modify or alter the judgment, order or decree of a foreign jurisdiction which had personal jurisdiction over both parties concerning the division or assignment of marital assets or property.
Chapter 208: Section 38. Costs Section 38. In any proceeding under this chapter, whether original or subsidiary, the court may, in its discretion, award costs and expenses, or either, to either party, whether or not the marital relation has terminated. In any case wherein costs and expenses, or either, may be awarded hereunder to a party, they may be awarded to his or her counsel, or may be apportioned between them.
Chapter 208: Section 39. Foreign divorces; validity Section 39. A divorce adjudged in another jurisdiction according to the laws thereof by a court having jurisdiction of the cause and of both the parties shall be valid and effectual in this commonwealth; but if an inhabitant of this commonwealth goes into another jurisdiction to obtain a divorce for a cause occurring here while the parties resided here, or for a cause which would not authorize a divorce by the laws of this commonwealth, a divorce so obtained shall be of no force or effect in this commonwealth.
Chapter 208: Section 4. Domicile of parties Section 4. A divorce shall not, except as provided in the following section, be adjudged if the parties have never lived together as husband and wife in this commonwealth; nor for a cause which occurred in another jurisdiction, unless before such cause occurred the parties had lived together as husband and wife in this commonwealth, and one of them lived in this commonwealth at the time when the cause occurred.
Chapter 208: Section 40. Cohabitation after divorce Section 40. Persons divorced from each other cohabiting as husband and wife or living together in the same house shall be held to be guilty of adultery.
Chapter 208: Section 41. Personation Section 41. Whoever falsely personates another or wilfully and fraudulently procures a person so to do, or fraudulently procures false testimony to be given, or makes a false or fraudulent return of service of process in an action for divorce or in any proceeding connected therewith, shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than two years.
Chapter 208: Section 42. Procurement of unlawful divorce Section 42. Whoever knowingly procures or obtains or assists another to procure or obtain any false, counterfeit or fraudulent divorce or judgment of divorce, or any divorce or judgment of divorce from a court of another state for or in favor of a person who at the time of making application therefor was a resident of this commonwealth, such court not having jurisdiction to grant such judgment, shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than six months.
Chapter 208: Section 43. Advertisement to procure divorce Section 43. Whoever writes, prints or publishes, or solicits another to write, print or publish, any notice, circular or advertisement soliciting employment in the business of procuring divorces or offering inducements for the purpose of procuring such employment shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than six months.
Chapter 208: Section 44. Certificate of divorce; unlawful issuance Section 44. Whoever, except in compliance with an order of a court of competent jurisdiction, gives, signs or issues any writing purporting to grant a divorce to persons who are husband and wife according to the laws of the commonwealth, or purporting to be a certificate that a divorce has been granted to such persons, shall be punished by a fine of not more than one thousand dollars, or by imprisonment for not more than three years, or both.
Chapter 208: Section 45. Criminal offenses; notice to district attorney Section 45. If a divorce is granted for a cause constituting a crime, committed within the commonwealth and within the time provided by law for making complaints and finding indictments therefor, the court granting the divorce may, in its discretion, cause notice of such facts to be given by the clerk of the court or register of probate to the district attorney for the district where such crime was committed, with a list of the witnesses proving such crime and any other information which it considers proper and thereupon the district attorney may cause complaint therefor to be made before a magistrate having jurisdiction thereof, or may present the evidence thereof to the grand jury.
Chapter 208: Section 46. Statistical reports; additional information Section 46. The registers of probate shall receive the statistical reports filed pursuant to section six B; and shall, upon a divorce becoming absolute, add to the information contained therein the date and number of the judgment, the cause for which the divorce was granted, and such additional information as the commissioner of public health deems useful for statistical and research purposes and shall further, on the tenth day of the month following every month in which divorces become absolute, transmit such reports to the commissioner of public health. Any such information forwarded to the commissioner of public health shall not constitute a public record nor be available except as may be necessary for the purposes stated in section two of chapter one hundred and eleven.
Chapter 208: Section 47. Repealed, 1976, 486, Sec. 23 Chapter 208: Section 5. Exceptions Section 5. If the plaintiff has lived in this commonwealth for one year last preceding the commencement of the action if the cause occurred without the commonwealth, or if the plaintiff is domiciled within the commonwealth at the time of the commencement of the action and the cause occurred within the commonwealth, a divorce may be adjudged for any cause allowed by law, unless it appears that the plaintiff has removed into this commonwealth for the purpose of obtaining a divorce.
Chapter 208: Section 6. Venue Section 6. Actions for divorce shall be filed, heard and determined in the probate court, held for the county where one of the parties lives, except that if either party still resides in the county where the parties last lived together, the action shall be heard and determined in a court for that county. In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer such action for hearing to a court in a county in which such party resides.
Chapter 208: Section 6A. Repealed, 1931, 426, Sec. 88 Chapter 208: Section 6B. Filing of action; statistical report Section 6B. An action for divorce shall be commenced in probate court by the filing of a complaint. Said complaint shall be accompanied by a statistical report, upon a form prepared by the commissioner of public health and made available through the office of the register of probate, to include the name, residence, date of birth and social security number of each of the parties, the name of the plaintiff, the number of times each of the parties had been married before, if any, the date of the marriage being dissolved, the number of children born of such marriage, if any, the name and date of birth of each such child, the number of minor children in the care and custody of the parties, if any, and such additional information as the commissioner of public health deems useful for statistical and research purposes. The state registrar may make such information available to the IV-D agency as set forth in chapter 119A and such other state or federal agencies as may be required by law.
Chapter 208: Section 7. Repealed, 1975, 400, Sec. 13 Chapter 208: Section 8. Commencement of actions Section 8. Actions for divorce in the probate courts shall be commenced in accordance with the Massachusetts Rules of Civil Procedure applicable to domestic relations procedure.
Chapter 208: Section 8A. Repealed, 1975, 400, Sec. 15 Chapter 208: Section 9. Repealed, 1975, 400, Sec. 16 Chapter 208: Section 9A. Repealed, 1922, 542, Sec. 3 Chapter 209: Section 1. Married persons; separate property and property held as tenants by entirety; liability for debts Section 1. The real and personal property of any person shall, upon marriage, remain the separate property of such person, and a married person may receive, receipt for, hold, manage and dispose of property, real and personal, in the same manner as if such person were sole. A husband and wife shall be equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety.
The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse; provided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family.
Chapter 209: Section 10, 11. Repealed, 1974, 147, Sec. 4 Chapter 209: Section 12. Repealed, 1979, 306 Chapter 209: Section 13. Marriage settlements Section 13. The preceding sections shall not invalidate a marriage settlement or contract.
Chapter 209: Section 14. Release of homestead by wife of ward Section 14. If the guardian or conservator of a married man is licensed to sell real estate of his ward, the wife of the ward may join with the guardian or conservator in the conveyance, and release homestead in the granted property, in like manner as she might have done by joining in a conveyance thereof made by her husband if he had been under no legal disability.
Chapter 209: Section 15. Wife of ward; joinder with guardian or conservator; sale of realty Section 15. If such guardian or conservator is licensed to sell the interest of the ward in any real estate of his wife, the wife may join with the guardian or conservator in the conveyance, and convey all her estate and interest in the granted property in like manner as she might have done by a conveyance thereof made jointly with her husband, if he had been under no legal disability.
Chapter 209: Section 16. Disposition of proceeds Section 16. If the wife so releases her homestead, or so conveys her own estate, the proceeds of the sale may be so invested and disposed of as to secure to her, and to the minor children of the owner if it is an estate of homestead, the same rights in the principal and income thereof as she or they would have had therein if it had not been sold. An agreement made between her and the guardian or conservator for securing and disposing of the proceeds or any part thereof for the purpose aforesaid, if approved by the probate court for the county where the guardian or conservator was appointed, or, in default of such agreement, an order therefor made by the probate court, shall be valid and binding on all persons interested in the granted property or in said proceeds, and may be enforced by the court or by an action at law.
Chapter 209: Section 17. Partition; joinder of husband or wife of ward with guardian or conservator Section 17. The wife of a man under guardianship or conservatorship may join with his guardian or conservator, and the guardian or conservator of a woman may join with her husband, in making partition of her real estate which is held in joint tenancy or in common, and they may make any release or other conveyance necessary or proper therefor, as the parties might do if neither of them were under legal disability.
Chapter 209: Section 18. Mentally ill persons; conveyance or mortgage of real estate; release of homestead Section 18. The spouse of a person incapacitated by reason of mental illness desiring to convey said person’s real estate absolutely or by mortgage may file a petition in the probate court describing such real estate and praying that homestead therein may be released and stating the facts and reasons why the prayer of the petition should be granted. The court, after notice and a hearing, may by decree, authorize the guardian of the person incapacitated by reason of mental illness to make the release by joining in any deed or deeds, mortgage or mortgages of the whole or a part of said real estate which is or are made within five years after said decree by the spouse of the person incapacitated by reason of mental illness or by a trustee for such spouse.
Chapter 209: Section 19, 20. Repealed, 1971, 423, Sec. 18 Chapter 209: Section 1A. Tenants by entirety under older deed; electing treatment of tenancy Section 1A. Tenants by the entirety holding under a deed dated prior to February eleventh, nineteen hundred and eighty may elect to have their tenancy treated as being subject to the provisions of chapter seven hundred and twenty-seven of the acts of nineteen hundred and seventy-nine; provided, however, that such election is made in writing, identifying the real estate with reference to the book and page of the registry of deeds wherein such deed is filed. Such election shall be executed by the grantees named as tenants by the entirety on the deed who are electing to be subject to this section, duly notarized, and recorded in said registry.
Chapter 209: Section 2. Married woman; power to contract Section 2. A married woman may make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole, and may make such contracts with her husband.
Chapter 209: Section 21. Mentally ill spouse; reservation of portion of proceeds upon release of homestead Section 21. If the guardian of a married ward that is incapacitated by reason of mental illness, is authorized under section eighteen to release an estate of homestead and the probate court finds that a portion of the proceeds of the real estate sold, or of an amount loaned on a mortgage thereof, must be reserved for the use of the ward, it shall order that a portion, equal to fifty per cent of the proceeds, to be set aside and paid over to such guardian to be invested in a homestead and held by the guardian for the benefit of the ward, if the ward survives the ward’s spouse, the rent or use thereof to be received and enjoyed during the life of the ward by the ward’s spouse, or until otherwise ordered by the court for cause; and the homestead to be said spouse’s and to be conveyed to said spouse by said guardian, if said spouse survives the ward.
Chapter 209: Section 22, 23. Repealed, 1971, 423, Sec. 18 Chapter 209: Section 24. Venue Section 24. Proceedings under sections eighteen and twenty-one, if the spouse of such a person who is incapacitated by reason of mental illness is an inhabitant of the commonwealth, shall be in the county where said spouse resides, otherwise in a county where any of said spouse’s real estate is situated, and a certified copy of all final orders or decrees in such proceedings shall be recorded in the registry of deeds in every county or district where such real estate lies.
Chapter 209: Section 25. Antenuptial settlements; force and effect Section 25. At any time before marriage, the parties may make a written contract providing that, after the marriage is solemnized, the whole or any designated part of the real or personal property or any right of action, of which either party may be seized or possessed at the time of the marriage, shall remain or become the property of the husband or wife, according to the terms of the contract. Such contract may limit to the husband or wife an estate in fee or for life in the whole or any part of the property, and may designate any other lawful limitations. All such limitations shall take effect at the time of the marriage in like manner as if they had been contained in a deed conveying the property limited.
Chapter 209: Section 26. Antenuptial settlements; record; description of property Section 26. A schedule of the property intended to be affected, containing a sufficiently clear description thereof to enable a creditor of the husband or wife to distinguish it from other property, shall be annexed to such contract; and such contract and schedule shall, either before the marriage or within ninety days thereafter, be recorded in the registry of deeds for the county or district where the husband resides at the time of the record, or, if he is not a resident of this commonwealth, then in the registry of deeds for the county or district where the wife resides at the time of the record, if it is made before the marriage, or where she last resided, if made after the marriage. If the contract is not so recorded, it shall be void except as between the parties thereto and their heirs and personal representatives. It shall also be recorded in the registry of deeds for every county or district where there is land to which it relates.
Chapter 209: Section 27. Repealed, 1977, 581, Sec. 3 Chapter 209: Section 28. Powers Section 28. If a married person comes from another state or country into the commonwealth, that married person shall have all the rights, powers and obligations given to married persons by this chapter.
Chapter 209: Section 29. Property rights acquired in other states; effect of residence in this commonwealth Section 29. If a husband and his wife, married in another state or country, come into this commonwealth, either at the same or at different times, and reside here as husband and wife, she shall retain all property which she had acquired by the laws of any other state or country, or by a marriage contract or settlement made out of this commonwealth. Such residence together here shall have the same effect, relative to their subsequent rights and liabilities, as if they had married here at the beginning of such residence.
Chapter 209: Section 3. Transfers between husband and wife Section 3. Transfers of real and personal property between husband and wife shall be valid to the same extent as if they were sole.
Chapter 209: Section 30. Sale or conveyance; notice to opposing absent spouse; jurisdiction of court; proof of abandonment; retransfer to opposing absent party Section 30. After the filing of a libel for divorce, or for nullity of marriage or of a petition for separate support or maintenance, and during the pendency thereof, or upon the filing of a separate petition, a probate court may upon motion of a person whose spouse has abandoned him or her and thereby left the abandoned spouse and his or her dependents without sufficient means to maintain themselves may, after giving the respondent spouse notice and an opportunity to be heard, authorize the moving party to sell, convey, mortgage, receive or receipt for any real or personal property of the opposing party which remains in the commonwealth undisposed of by him or her, any property in the name of the opposing party which is beneficially owned by the moving party or by the moving party’s minor dependents and any property within the commonwealth held by both spouses jointly, as tenants by the entirety or as tenants in common, and to use and dispose of the same or the proceeds thereof during the absence of the opposing party as if the moving party were sole. Such petition may be filed, heard and determined in the probate court for the county in which the moving party resides. The opposing party shall be given notice as provided for divorce libels when the libelee cannot be located within the commonwealth. Such petition may be filed to satisfy, in whole or in part, an outstanding support order, or to provide for the future support and maintenance of the moving party and his or her dependents. The court shall have jurisdiction in rem of the aforementioned property to enforce an order for support and maintenance. Upon approval of the petition, the court shall transfer to the moving party or shall authorize him or her to sell, convey, mortgage or otherwise use or control such property as is needed for the present and future support and maintenance of, or for use by, the moving party and his or her dependents, including but not limited to residences, motor vehicles and furniture and furnishings. Any deed or mortgage given pursuant to this section shall first be approved by the court and such approval shall constitute conclusive evidence in favor of any purchaser that the authority of the grantor has not terminated.
For the purposes of this section, abandonment shall mean that the opposing party has left the moving party and does not intend to return. Proof that the moving party has not known the whereabouts of the opposing party for the previous twelve months shall constitute prima facie evidence of abandonment. The court may, upon petition of the opposing party, retransfer to him or her so much of the transferred property or the proceeds thereof as remains in the hands of the moving party to which the opposing party may be entitled when such petition is filed.
Chapter 209: Section 31. Non-resident married woman; conveyance of realty Section 31. A married woman residing without this commonwealth, and owning in her own right real estate situated herein, whose husband abandoning and not sufficiently maintaining her has absented himself from the place where they last dwelt together, may petition the probate court in any county where the land lies, describing such real estate and praying for authority to sell and convey it in the same manner and with the same effect as if she were sole. The court, after such notice as it may order, if it finds that the petitioner has been abandoned by her husband and that he does not sufficiently maintain her, may authorize the petitioner to sell and convey within one year from the date of such decree such real estate as if she were sole.
Chapter 209: Section 32. Order prohibiting restraint of personal liberty of spouse; support, custody and maintenance orders; information provided to complainant; domestic violence record search; investigations; factors determining support amount Section 32. If a spouse fails, without justifiable cause, to provide suitable support of the other spouse, or deserts the other spouse, or if a married person has justifiable cause for living apart from his spouse, whether or not the married person is actually living apart, the probate court may, upon the complaint of the married person, or if he is incompetent due to mental illness or mental retardation upon the complaint of the guardian or next friend, prohibit the spouse from imposing any restraint upon the personal liberty of the married person during such time as the court by its order may direct or until further order of the court thereon. Upon the complaint of any such party or guardian of a minor child made in accordance with the Massachusetts Rules of Civil Procedure the court may make further orders relative to the support of the married person and the care, custody and maintenance of minor children, may determine with which of the parents the children or any of them shall remain and may, from time to time, upon similar complaint revise and alter such judgment or make a new order or judgment as the circumstances of the parents or the benefit of the children may require.
Upon the filing of a complaint pursuant to this section to prohibit a spouse from imposing any restraint upon the complainant’s personal liberty, a complainant shall be informed that proceedings hereunder are civil in nature and that violations of orders issued hereunder are criminal in nature. Further, a complainant shall be given information prepared by the appropriate district attorney’s office that other criminal proceedings may be available and shall be instructed by such district attorney’s office relative to the procedures required to initiate criminal proceedings including, but not limited to, the filing of a complaint for a violation of section forty-three of chapter two hundred and sixty-five. Whenever possible, a complainant shall be provided with such information in the complainant’s native language.
When considering a complaint to prohibit a spouse from imposing any restraint upon the complainant’s personal liberty under this section, a judge shall cause a search to be made of the records contained within the statewide domestic violence record keeping system maintained by the office of the commissioner of probation and shall review the resulting data to determine whether the named defendant has a civil or criminal record involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against the named defendant, a judge shall order that the appropriate law enforcement officials be notified and shall order that any information regarding the defendant’s most recent whereabouts shall be forwarded to such officials. In all instances where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner. In all instances where such an imminent threat of bodily injury is found to exist, the judge shall notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable.
Upon request by the court, the state police, local police or probation officers shall make an investigation in relation to any proceedings and report to the court. Every such report shall be in writing and shall become a part of the record of such proceedings.
In determining the amount of a support order, if any, to be made, the court shall consider, but is not limited to, the following factors, to the extent pertinent and raised by the parties: (a) the net income, assets, earning ability, and other obligations of the obligor; (b) the number and ages of the persons to be supported; (c) the expenses incurred by the obligor and the persons to be supported for the necessities of life, and the usual standard of living of the persons to be supported; (d) the assets and net earnings, including a deduction for the provision for childcare, of the persons to be supported; (e) the marriage or remarriage of any person being supported; (f) the responsibilities of the obligor for the maintenance or support of any other children of the obligor, even if a court order for such maintenance or support does not exist, or for any preexisting order for the maintenance or support of any other children from a previous marriage, or for any preexisting order for the maintenance or support of any other children born out of wedlock and that said obligor is fulfilling such responsibility; and (g) the capacity of any person being supported or having custody of supported children, except persons under eighteen years of age, to work or to make reasonable efforts to obtain employment, including the extent of employment opportunities in fields in which such person is suited for employment, the necessity for and availability to said person of job training programs, and the extent to which said person is needed during business hours by members of the family and the availability to said person of child care services and the extent to which such person needs to attend school to obtain skills necessary for employment. When the court makes an order for maintenance or support on behalf of a spouse or child, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse or child for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor exercise the option of additional coverage in favor of the spouse and child or obtain coverage for the spouse and child.
No order shall leave a obligor with less money than is required to provide him minimum subsistence, including food, shelter, utilities, clothing and the reasonable expenses necessary to travel to or obtain employment.
Chapter 209: Section 32A to 32C. Repealed, 1975, 400, Sec. 45 Chapter 209: Section 32D. Judgment for separate support; conveyance of real property; enforcement; vesting of title Section 32D. Whenever in any proceeding under section thirty-two a judgment shall be entered directing that a deed, conveyance or release of certain real estate, or interest therein, be made, such judgment shall create an equitable right to its enforcement subject to the provision for recording of notice in section fifteen of chapter one hundred and eighty-four, in the party entitled thereto by the judgment, and if the judgment has not been complied with within three months after said judgment has been entered and a certified copy of said judgment is recorded or registered in the manner provided by section forty-four of chapter one hundred and eighty-three, then the judgment itself shall operate to vest title to the real estate or interest therein in the party entitled thereto by the judgment as fully and completely as if such deed, conveyance or release had been duly executed by the party directed to make it, and so recorded.
Chapter 209: Section 32E. Judgment or order of support; enforcement Section 32E. Each judgment or order of support which is issued, reviewed or modified pursuant to this chapter shall conform to and shall be enforced in accordance with the provisions of section twelve of chapter one hundred and nineteen A.
Chapter 209: Section 32F. Married persons living apart; actions for support Section 32F. (a) If no order for support pursuant to an action filed under chapters two hundred and seven, two hundred and eight or section thirty-two of this chapter has been entered, the district court, the Boston municipal court or the probate and family court shall have concurrent jurisdiction under this section to order a spouse to support the other spouse or to order a parent to support his dependent child; provided however, that nothing herein shall be construed to grant jurisdiction to the district court or Boston municipal court to determine the parentage of a child. A complaint may be filed by the IV-D agency against a spouse seeking an order for support of his dependent child. A complaint may also be filed by a married person for the support of the dependent child in his care or, if living apart from his spouse, for his own support. The court shall have jurisdiction to order a sum to be paid periodically for the current support of a child or of a spouse and child or of a spouse and shall have jurisdiction to order a spouse or parent to reimburse the other spouse or the IV-D agency on behalf of the department of transitional assistance or the department of social services for past support including medical expenses, provided to his spouse or child, notwithstanding the fact that at the time of the hearing the parties are no longer receiving public assistance. When an action is commenced by the spouse or, on behalf of the child entitled to receive support, by the guardian, next of kin or person having care and physical custody of the child, and the spouse or child is or was a recipient of benefits under chapters one hundred and seventeen, one hundred and seventeen A or one hundred and eighteen, the court shall require notice to the IV-D agency of the pendency of the action and the agency shall be permitted to intervene in such action. When the action is commenced on behalf of such department of transitional assistance or said department of social services or anyone other than the spouse or parent of a child entitled to receive support, the court shall ensure that such spouse and all parties are notified of the action and of any motions for temporary orders for support. A spouse or parent or custodian shall be permitted to intervene in the action as of right.
(b) Proceedings under this section shall be filed in the judicial district or county where either spouse lives except that if the action includes or is on behalf of a minor child who does not live with either parent, the action shall be filed in the judicial district or county where the child lives. There shall be no filing fee for actions pursuant to this section. Service of the complaint shall be made in accordance with applicable rules of court. In addition to those otherwise authorized to serve civil process, any officer authorized under the laws of the commonwealth to serve criminal process may serve any process under this section.
(c) During the pendency of an action under this section and pursuant to the procedures adopted under chapter two hundred and twenty-one B, if applicable, temporary orders providing for the support of the spouse or children, may be entered. Such orders shall continue in force until modified or revoked, and shall be superseded by an order or judgment pursuant to an action under chapter two hundred and eight, under section thirty-two of this chapter or under chapter two hundred and seven.
(d) In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice for administration and management, and there shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child.
(e) The court has continuing jurisdiction to modify, increase, decrease or revoke a judgment of support at any time after the judgment was made upon a complaint for modification pursuant to section thirty-seven. If the IV-D agency is responsible for enforcing the case, an order may also be modified in accordance with the procedures set out in section 3B of chapter 119A.
(f) No proceedings under this section shall be commenced or entertained if there is a prior pending action between the spouses or regarding the child entitled to support under chapters two hundred and seven, or chapter two hundred and eight or under section thirty-two of this chapter. If an action under chapters two hundred and seven, two hundred and eight or section thirty-two of this chapter is filed after the commencement of proceedings or after a judgment under this section, any support order or judgment issued in such action shall supersede any support order or judgment and any income assignment made under this section. Nothing herein shall prevent the probate and family court department in any proceeding under chapters two hundred and seven, two hundred and eight or section thirty-two of this chapter from entering an order or judgment enforcing any order or judgment under this section which has not been paid or entering an order or judgment enforcing provisions for payment contained in a judgment entered under this section.
(g) The administrative justices of the district, Boston municipal and probate and family court department of the trial court shall jointly promulgate a form of complaint for use under this section which shall be in such form and language to permit a plaintiff to prepare and file such complaint pro se.
(h) Any action pursuant to this chapter that is pending or was previously adjudicated in the district court or Boston municipal court departments may be transferred to the probate and family court department by any party or by the IV-D agency as set forth in chapter one hundred and nineteen A. An action shall be transferred upon the filing of the following documents with the probate and family court:— (1) a copy of the petition, if any, and any accompanying documents; (2) a copy of the order of the district court or Boston municipal court, if any; (3) a copy of the findings of the court, if any; (4) a copy of the financial statements submitted by the parties, if any; (5) a copy of the worksheet used to calculate the amount of the child support order pursuant to the child support guidelines, if any; and (6) a copy of the docket maintained by the district court or the Boston municipal court, if any. Once transferred, the order of the district court or the Boston municipal court shall have the same force and effect, and shall be subject to the same procedures and defenses as an order of the probate and family court and may be enforced or modified in the same manner available to enforce or modify any judgment or order of the probate and family court. Transfer of an order pursuant to this section shall not limit the use of any enforcement remedy, whether judicial or administrative, that may be available and the probate and family court shall preserve all arrears that have accrued pursuant to the order of the district or Boston municipal court departments.
Chapter 209: Section 33. Separate support or maintenance; attachment of defendant’s property and trustee process Section 33. In an action for separate support or maintenance, an attachment of the defendant’s property may be made as upon an action for divorce; and sections seventeen, thirty-three, thirty-five, and thirty-eight of chapter two hundred and eight shall apply to proceedings upon such complaint and to all subsidiary proceedings arising thereunder, so far as appropriate. Trustee process of an obligor’s disposable earnings may likewise be made by the filing of a complaint under the provisions of section thirty-six A of chapter two hundred and eight. All procedures under said section thirty-six A of said chapter two hundred and eight shall apply following the filing of said complaint.
Chapter 209: Section 34. Venue Section 34. An action under section thirty-two or thirty-six may be brought in the county where either of the parties lives, except that if the plaintiff has left the county where the parties have lived together and the defendant still lives therein, the action shall be brought in that county.
Chapter 209: Section 35. Repealed, 1987, 522, Sec. 15 Chapter 209: Section 36. Spouse living apart; conveyance and will Section 36. A probate court may upon complaint of a person, or if said person is incapacitated by reason of mental illness, of said person’s guardian or next friend, enter a judgment that said person has been deserted by said person’s spouse or is living apart from such spouse for justifiable cause, and said person may thereafter convey said person’s real estate in the same manner and with the same effect as if said person were sole, and the surviving spouse shall not be entitled under section fifteen of chapter one hundred and ninety-one to waive the provisions of a will made by said person or to claim such portion of said person’s estate as the spouse would take if said person had died intestate, nor shall such spouse be entitled upon said person’s death, if said person leaves a will, to dower in said person’s estate, as provided in section one of chapter one hundred and eighty-nine. Section seventeen of chapter two hundred and eight shall apply to proceedings upon such complaint, so far as applicable.
Chapter 209: Section 37. Support orders for children of separated parents; child support guidelines; modification of orders; provisions for education and health insurance; parents convicted of first degree murder Section 37. If the parents of minor children live apart from each other, not being divorced, the probate court for the county in which said minors or any of them are residents or inhabitants, upon complaint of either parent, or of a next friend in behalf of the children after notice to both parents, shall have the same power to make judgments relative to their care, custody, education and maintenance, and to revise and alter such judgments or make new judgments. In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice for administration and management, and there shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. In furtherance of the public policy that dependent children shall be maintained as completely as possible from the resources of their parents and upon a complaint filed after a judgment of support, orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines promulgated by the chief justice for administration and management or if there is a need to provide for the health care coverage of the child. A modification to provide for the health care coverage of the child shall be entered whether or not a modification in the amount of child support is necessary. There shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome the presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. The order shall be modified accordingly unless the inconsistency between the amount of the existing order and the amount of the order that would result from application of the guidelines is due to the fact that the amount of the existing order resulted from a rebuttal of the guidelines and that there has been no change in the circumstances which resulted in such rebuttal; provided, however, that even if the specific facts that justified departure from the guidelines upon entry of the original order remain in effect, the order shall be modified in accordance with the guidelines unless the court finds that the guidelines amount would be unjust or inappropriate under the circumstances and that the existing order is consistent with the best interests of the child. A modification of child support may enter notwithstanding an agreement of the parents that has independent legal significance. If the IV-D agency is responsible for enforcing the case, an order may also be modified in accordance with the procedures set out in section 3B of chapter 119A. The probate court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree. When the court makes an order for support or maintenance on behalf of a child, and such child is not covered by a private group health insurance plan, said court shall determine whether the obligor under such order has health insurance or other health coverage on a group plan available to him through an employer or organization, or has health insurance or other health coverage available to him at a reasonable cost, that may be extended to cover the spouse or child for whom support is ordered. When said court has determined that the obligor has such insurance, said court shall include in the support order a requirement that the obligor exercise the option of additional coverage in favor of such child or obtain coverage for the child.
When a court makes an order for maintenance or support, the court shall determine whether the obligor under such order is responsible for the maintenance or support for any other children of the obligor, even if a court order for such maintenance or support does not exist, or for any preexisting order for the maintenance or support of any other children from a previous marriage, or for any preexisting order for the maintenance or support of any other children born out of wedlock. If the court determines that such responsibility does, in fact, exist and that such obligor is fulfilling such responsibility such court shall take into consideration such responsibility in setting the amount to be paid under the current order for maintenance or support.
No court shall make an order providing visitation rights to a parent who has been convicted of murder in the first degree of the other parent of the child who is the subject of the order, unless such child is of suitable age to signify his assent and assents to such order; provided, further, that until such order is issued, no person shall visit, with the child present, a parent who has been convicted of murder in the first degree of the other parent of the child without the consent of the child’s custodian or legal guardian.
Chapter 209: Section 38. Visitation and custody orders; consideration of abuse toward parent or child; best interest of child Section 38. In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, “abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury. “Serious incident of abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. For purposes of this section, “bodily injury” and “serious bodily injury” shall have the same meanings as provided in section 13K of chapter 265.
A probate and family court’s finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this section, an “abusive parent” shall mean a parent who has committed a pattern of abuse or a serious incident of abuse.
For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admissible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the probate and family court that a pattern or serious incident of abuse has occurred.
If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child’s best interests and provides for the safety and well-being of the child.
If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and the safety of the abused parent. The court may consider:(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;(b) ordering visitation supervised by an appropriate third party, visitation center or agency;(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;(e) ordering the abusive parent to pay the costs of supervised visitation;(f) prohibiting overnight visitation;(g) requiring a bond from the abusive parent for the return and safety of the child;(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.
Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing.
Chapter 209: Section 4. Married woman; work and labor; presumption Section 4. Work and labor performed by a married woman for a person other than her husband and children shall, unless there is an express agreement on her part to the contrary, be presumed to be performed on her separate account.
Chapter 209: Section 5. Married woman; acting as fiduciary Section 5. A married woman may be an executrix, administratrix, guardian, conservator, trustee or receiver, and may bind herself and the estate which she represents without any act or assent of her husband.
Chapter 209: Section 6. Married woman; power to sue and be sued Section 6. A married woman may sue and be sued in the same manner as if she were sole; but this section shall not authorize suits between husband and wife except in connection with contracts entered into pursuant to the authority contained in section two.
Chapter 209: Section 7. Married woman; liabilities Section 7. A married woman shall not be liable for her husband’s debts, nor shall her property be liable to be taken on an execution against him. But a married woman shall be liable jointly with her husband for debts due, to the amount of one hundred dollars in each case, for necessaries furnished with her knowledge or consent to herself or her family, if she has property to the amount of two thousand dollars or more.
Chapter 209: Section 8. Husband; liability for wife’s debts Section 8. A husband shall not be liable upon a cause of action which originated against his wife prior to their marriage, or to pay a judgment recovered against her.
Chapter 209: Section 9. Husband; liability on contracts concerning separate property of wife Section 9. Contracts made by a married woman relative to her separate property, trade, business, labor or services shall not bind her husband or render him or his property liable therefor; but she and her separate property shall be liable on such contracts in the same manner as if she were sole.
Section 1. As used in this chapter the following words shall have the following meanings:“Abuse”, the occurrence of one or more of the following acts between family or household members:(a) attempting to cause or causing physical harm;(b) placing another in fear of imminent serious physical harm;(c) causing another to engage involuntarily in sexual relations by force, threat or duress.
“Court”, the superior, probate and family, district or Boston municipal court departments of the trial court, except when the petitioner is in a dating relationship when “Court” shall mean district, probate, or Boston municipal courts.
“Family or household members”, persons who:(a) are or were married to one another;(b) are or were residing together in the same household;(c) are or were related by blood or marriage;(d) having a child in common regardless of whether they have ever married or lived together; or(e) are or have been in a substantive dating or engagement relationship, which shall be adjudged by district, probate or Boston municipal courts consideration of the following factors:(1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.
“Law officer”, any officer authorized to serve criminal process.
“Protection order issued by another jurisdiction”, any injunction or other order issued by a court of another state, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, or tribal court that is issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to another person, including temporary and final orders issued by civil and criminal courts filed by or on behalf of a person seeking protection.
“Vacate order”, court order to leave and remain away from a premises and surrendering forthwith any keys to said premises to the plaintiff. The defendant shall not damage any of the plaintiff’s belongings or those of any other occupant and shall not shut off or cause to be shut off any utilities or mail delivery to the plaintiff. In the case where the premises designated in the vacate order is a residence, so long as the plaintiff is living at said residence, the defendant shall not interfere in any way with the plaintiff’s right to possess such residence, except by order or judgment of a court of competent jurisdiction pursuant to appropriate civil eviction proceedings, a petition to partition real estate, or a proceeding to divide marital property. A vacate order may include in its scope a household, a multiple family dwelling and the plaintiff’s workplace. When issuing an order to vacate the plaintiff’s workplace, the presiding justice must consider whether the plaintiff and defendant work in the same location or for the same employer.
certified batterers’ treatment program as condition of probation Section 10. The court shall impose an assessment of three hundred and fifty dollars against any person who has been referred to a certified batterers’ treatment program as a condition of probation. Said assessment shall be in addition to the cost of the treatment program. In the discretion of the court, said assessment may be reduced or waived when the court finds that the person is indigent or that payment of the assessment would cause the person, or the dependents of such person, severe financial hardship. Assessments made pursuant to this section shall be in addition to any other fines, assessments, or restitution imposed in any disposition. All funds collected by the court pursuant to this section shall be transmitted monthly to the state treasurer, who shall deposit said funds in the General Fund.
Section 2. Proceedings under this chapter shall be filed, heard and determined in the superior court department or the Boston municipal court department or respective divisions of the probate and family or district court departments having venue over the plaintiff’s residence. If the plaintiff has left a residence or household to avoid abuse, such plaintiff shall have the option of commencing an action in the court having venue over such prior residence or household, or in the court having venue over the present residence or household.
Section 3. A person suffering from abuse from an adult or minor family or household member may file a complaint in the court requesting protection from such abuse, including, but not limited to, the following orders:(a) ordering the defendant to refrain from abusing the plaintiff, whether the defendant is an adult or minor;(b) ordering the defendant to refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor;(c) ordering the defendant to vacate forthwith and remain away from the household, multiple family dwelling, and workplace. Notwithstanding the provisions of section thirty-four B of chapter two hundred and eight, an order to vacate shall be for a fixed period of time, not to exceed one year, at the expiration of which time the court may extend any such order upon motion of the plaintiff, with notice to the defendant, for such additional time as it deems necessary to protect the plaintiff from abuse;(d) awarding the plaintiff temporary custody of a minor child; provided, however, that in any case brought in the probate and family court a finding by such court by a preponderance of the evidence that a pattern or serious incident of abuse, as defined in section 31A of chapter 208, toward a parent or child has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this section, an “abusive parent” shall mean a parent who has committed a pattern of abuse or a serious incident of abuse;For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admissible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the probate and family court that a pattern or serious incident of abuse has occurred.
If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child’s best interests and provides for the safety and well-being of the child.
If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and the safety of the abused parent. The court may consider:(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;(b) ordering visitation supervised by an appropriate third party, visitation center or agency;(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;(e) ordering the abusive parent to pay the costs of supervised visitation;(f) prohibiting overnight visitation;(g) requiring a bond from the abusive parent for the return and safety of the child;(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.
Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing.
(e) ordering the defendant to pay temporary support for the plaintiff or any child in the plaintiff’s custody or both, when the defendant has a legal obligation to support such a person. In determining the amount to be paid, the court shall apply the standards established in the child support guidelines. Each judgment or order of support which is issued, reviewed or modified pursuant to this chapter shall conform to and shall be enforced in accordance with the provisions of section 12 of chapter 119A;(f) ordering the defendant to pay the person abused monetary compensation for the losses suffered as a direct result of such abuse. Compensatory losses shall include, but not be limited to, loss of earnings or support, costs for restoring utilities, out-of-pocket losses for injuries sustained, replacement costs for locks or personal property removed or destroyed, medical and moving expenses and reasonable attorney’s fees;(g) ordering information in the case record to be impounded in accordance with court rule;(h) ordering the defendant to refrain from abusing or contacting the plaintiff’s child, or child in plaintiff’s care or custody, unless authorized by the court;(i) the judge may recommend to the defendant that the defendant attend a batterer’s intervention program that is certified by the department of public health.
No filing fee shall be charged for the filing of the complaint. Neither the plaintiff nor the plaintiff’s attorney shall be charged for certified copies of any orders entered by the court, or any copies of the file reasonably required for future court action or as a result of the loss or destruction of plaintiff’s copies.
Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order. When the expiration date stated on the order is on a weekend day or holiday, or a date when the court is closed to business, the order shall not expire until the next date that the court is open to business. The plaintiff may appear on such next court business day at the time designated by the order to request that the order be extended. The court may also extend the order upon motion of the plaintiff, for such additional time as it deems necessary to protect from abuse the plaintiff or any child in the plaintiff’s care or custody. The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, of allowing an order to expire or be vacated, or for refusing to issue a new order.
The court may modify its order at any subsequent time upon motion by either party. When the plaintiff’s address is inaccessible to the defendant as provided in section 8 of this chapter and the defendant has filed a motion to modify the court’s order, the court shall be responsible for notifying the plaintiff. In no event shall the court disclose any such inaccessible address.
No order under this chapter shall in any manner affect title to real property.
No court shall compel parties to mediate any aspect of their case. Although the court may refer the case to the family service office of the probation department or victim/witness advocates for information gathering purposes, the court shall not compel the parties to meet together in such information gathering sessions.
A court shall not deny any complaint filed under this chapter solely because it was not filed within a particular time period after the last alleged incident of abuse.
A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact. The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order.
Any action commenced under the provisions of this chapter shall not preclude any other civil or criminal remedies. A party filing a complaint under this chapter shall be required to disclose any prior or pending actions involving the parties for divorce, annulment, paternity, custody or support, guardianship, separate support or legal separation, or abuse prevention.
If there is a prior or pending custody support order from the probate and family court department of the trial court, an order issued in the superior, district or Boston municipal court departments of the trial court pursuant to this chapter may include any relief available pursuant to this chapter except orders for custody or support.
If the parties to a proceeding under this chapter are parties in a subsequent proceeding in the probate and family court department for divorce, annulment, paternity, custody or support, guardianship or separate support, any custody or support order or judgment issued in the subsequent proceeding shall supersede any prior custody or support order under this chapter.
criminal proceedings; information required to be given to complainant upon filing Section 3A. Upon the filing of a complaint under this chapter, a complainant shall be informed that the proceedings hereunder are civil in nature and that violations of orders issued hereunder are criminal in nature. Further, a complainant shall be given information prepared by the appropriate district attorney’s office that other criminal proceedings may be available and such complainant shall be instructed by such district attorney’s office relative to the procedures required to initiate criminal proceedings including, but not limited to, a complaint for a violation of section forty-three of chapter two hundred and sixty-five. Whenever possible, a complainant shall be provided with such information in the complainant’s native language.
license; surrender of firearms; petition for review; hearing Section 3B. Upon issuance of a temporary or emergency order under section four or five of this chapter, the court shall, if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse, order the immediate suspension and surrender of any license to carry firearms and or firearms identification card which the defendant may hold and order the defendant to surrender all firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses in accordance with the provisions of this chapter and any license to carry firearms or firearms identification cards which the defendant may hold shall be surrendered to the appropriate law enforcement officials in accordance with the provisions of this chapter and, said law enforcement official may store, transfer or otherwise dispose of any such weapon in accordance with the provisions of section 129D of chapter 140; provided however, that nothing herein shall authorize the transfer of any weapons surrendered by the defendant to anyone other than a licensed dealer. Notice of such suspension and ordered surrender shall be appended to the copy of abuse prevention order served on the defendant pursuant to section seven. Law enforcement officials, upon the service of said orders, shall immediately take possession of all firearms, rifles, shotguns, machine guns, ammunition, any license to carry firearms and any firearms identification cards in the control, ownership, or possession of said defendant. Any violation of such orders shall be punishable by a fine of not more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house of correction, or by both such fine and imprisonment.
Any defendant aggrieved by an order of surrender or suspension as described in the first sentence of this section may petition the court which issued such suspension or surrender order for a review of such action and such petition shall be heard no later than ten court business days after the receipt of the notice of the petition by the court. If said license to carry firearms or firearms identification card has been suspended upon the issuance of an order issued pursuant to section four or five, said petition may be heard contemporaneously with the hearing specified in the second sentence of the second paragraph of section four. Upon the filing of an affidavit by the defendant that a firearm, rifle, shotgun, machine gun or ammunition is required in the performance of the defendant’s employment, and upon a request for an expedited hearing, the court shall order said hearing within two business days of receipt of such affidavit and request but only on the issue of surrender and suspension pursuant to this section.
surrender or suspension Section 3C. Upon the continuation or modification of an order issued pursuant to section 4 or upon petition for review as described in section 3B, the court shall also order or continue to order the immediate suspension and surrender of a defendant’s license to carry firearms, including a Class A or Class B license, and firearms identification card and the surrender of all firearms, rifles, shotguns, machine guns or ammunition which such defendant then controls, owns or possesses if the court makes a determination that the return of such license to carry firearms, including a Class A or Class B license, and firearm identification card or firearms, rifles, shotguns, machine guns or ammunition presents a likelihood of abuse to the plaintiff. A suspension and surrender order issued pursuant to this section shall continue so long as the restraining order to which it relates is in effect; and, any law enforcement official to whom such weapon is surrendered may store, transfer or otherwise dispose of any such weapon in accordance with the provisions of section 129D of chapter 140; provided, however, that nothing herein shall authorize the transfer of any weapons surrendered by the defendant to anyone other than a licensed dealer. Any violation of such order shall be punishable by a fine of not more than $5,000 or by imprisonment for not more than two and one-half years in a house of correction or by both such fine and imprisonment.
Section 4. Upon the filing of a complaint under this chapter, the court may enter such temporary orders as it deems necessary to protect a plaintiff from abuse, including relief as provided in section three. Such relief shall not be contingent upon the filing of a complaint for divorce, separate support, or paternity action.
If the plaintiff demonstrates a substantial likelihood of immediate danger of abuse, the court may enter such temporary relief orders without notice as it deems necessary to protect the plaintiff from abuse and shall immediately thereafter notify the defendant that the temporary orders have been issued. The court shall give the defendant an opportunity to be heard on the question of continuing the temporary order and of granting other relief as requested by the plaintiff no later than ten court business days after such orders are entered.
Notice shall be made by the appropriate law enforcement agency as provided in section seven.
If the defendant does not appear at such subsequent hearing, the temporary orders shall continue in effect without further order of the court.
certification Section 5. When the court is closed for business or the plaintiff is unable to appear in court because of severe hardship due to the plaintiff’s physical condition, any justice of the superior, probate and family, district or Boston municipal court departments may grant relief to the plaintiff as provided under section four if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse. In the discretion of the justice, such relief may be granted and communicated by telephone to an officer or employee of an appropriate law enforcement agency, who shall record such order on a form of order promulgated for such use by the chief administrative justice and shall deliver a copy of such order on the next court day to the clerk-magistrate of the court having venue and jurisdiction over the matter. If relief has been granted without the filing of a complaint pursuant to this section of this chapter, then the plaintiff shall appear in court on the next available business day to file said complaint. If the plaintiff in such a case is unable to appear in court without severe hardship due to the plaintiff’s physical condition, then a representative may appear in court on the plaintiff’s behalf and file the requisite complaint with an affidavit setting forth the circumstances preventing the plaintiff from appearing personally. Notice to the plaintiff and defendant and an opportunity for the defendant to be heard shall be given as provided in said section four.
Any order issued under this section and any documentation in support thereof shall be certified on the next court day by the clerk-magistrate or register of the court issuing such order to the court having venue and jurisdiction over the matter. Such certification to the court shall have the effect of commencing proceedings under this chapter and invoking the other provisions of this chapter but shall not be deemed necessary for an emergency order issued under this section to take effect.
jurisdiction; enforcement; filing; presumption of validity Section 5A. Any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction.
A person entitled to protection under a protection order issued by another jurisdiction may file such order in the superior court department or the Boston municipal court department or any division of the probate and family or district court departments by filing with the court a certified copy of such order which shall be entered into the statewide domestic violence record keeping system established pursuant to the provisions of section seven of chapter one hundred and eighty-eight of the acts of nineteen hundred and ninety-two and maintained by the office of the commissioner of probation. Such person shall swear under oath in an affidavit, to the best of such person’s knowledge, that such order is presently in effect as written. Upon request by a law enforcement agency, the register or clerk of such court shall provide a certified copy of the protection order issued by the other jurisdiction.
A law enforcement officer may presume the validity of, and enforce in accordance with section six, a copy of a protection order issued by another jurisdiction which has been provided to the law enforcement officer by any source; provided, however, that the officer is also provided with a statement by the person protected by the order that such order remains in effect. Law enforcement officers may rely on such statement by the person protected by such order.
Section 6. Whenever any law officer has reason to believe that a family or household member has been abused or is in danger of being abused, such officer shall use all reasonable means to prevent further abuse. The officer shall take, but not be limited to the following action:(1) remain on the scene of where said abuse occurred or was in danger of occurring as long as the officer has reason to believe that at least one of the parties involved would be in immediate physical danger without the presence of a law officer. This shall include, but not be limited to remaining in the dwelling for a reasonable period of time;(2) assist the abused person in obtaining medical treatment necessitated by an assault, which may include driving the victim to the emergency room of the nearest hospital, or arranging for appropriate transportation to a health care facility, notwithstanding any law to the contrary;(3) assist the abused person in locating and getting to a safe place; including but not limited to a designated meeting place for a shelter or a family member’s or friend’s residence. The officer shall consider the victim’s preference in this regard and what is reasonable under all the circumstances;(4) give such person immediate and adequate notice of his or her rights. Such notice shall consist of handing said person a copy of the statement which follows below and reading the same to said person. Where said person’s native language is not English, the statement shall be then provided in said person’s native language whenever possible.
“You have the right to appear at the Superior, Probate and Family, District or Boston Municipal Court, if you reside within the appropriate jurisdiction, and file a complaint requesting any of the following applicable orders: (a) an order restraining your attacker from abusing you; (b) an order directing your attacker to leave your household, building or workplace; (c) an order awarding you custody of a minor child; (d) an order directing your attacker to pay support for you or any minor child in your custody, if the attacker has a legal obligation of support; and (e) an order directing your attacker to pay you for losses suffered as a result of abuse, including medical and moving expenses, loss of earnings or support, costs for restoring utilities and replacing locks, reasonable attorney’s fees and other out-of-pocket losses for injuries and property damage sustained.
For an emergency on weekends, holidays, or weeknights the police will refer you to a justice of the superior, probate and family, district, or Boston municipal court departments.
You have the right to go to the appropriate district court or the Boston municipal court and seek a criminal complaint for threats, assault and battery, assault with a deadly weapon, assault with intent to kill or other related offenses.
If you are in need of medical treatment, you have the right to request that an officer present drive you to the nearest hospital or otherwise assist you in obtaining medical treatment.
If you believe that police protection is needed for your physical safety, you have the right to request that the officer present remain at the scene until you and your children can leave or until your safety is otherwise ensured. You may also request that the officer assist you in locating and taking you to a safe place, including but not limited to a designated meeting place for a shelter or a family member’s or a friend’s residence, or a similar place of safety.
You may request a copy of the police incident report at no cost from the police department.
”The officer shall leave a copy of the foregoing statement with such person before leaving the scene or premises.
(5) assist such person by activating the emergency judicial system when the court is closed for business;(6) inform the victim that the abuser will be eligible for bail and may be promptly released; and(7) arrest any person a law officer witnesses or has probable cause to believe has violated a temporary or permanent vacate, restraining, or no-contact order or judgment issued pursuant to section eighteen, thirty-four B or thirty-four C of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, section three, three B, three C, four or five of this chapter, or sections fifteen or twenty of chapter two hundred and nine C or similar protection order issued by another jurisdiction. When there are no vacate, restraining, or no-contact orders or judgments in effect, arrest shall be the preferred response whenever an officer witnesses or has probable cause to believe that a person:(a) has committed a felony;(b) has committed a misdemeanor involving abuse as defined in section one of this chapter;(c) has committed an assault and battery in violation of section thirteen A of chapter two hundred and sixty-five.
The safety of the victim and any involved children shall be paramount in any decision to arrest. Any officer arresting both parties must submit a detailed, written report in addition to an incident report, setting forth the grounds for dual arrest.
No law officer investigating an incident of domestic violence shall threaten, suggest, or otherwise indicate the arrest of all parties for the purpose of discouraging requests for law enforcement intervention by any party.
No law officer shall be held liable in any civil action regarding personal injury or injury to property brought by any party to a domestic violence incident for an arrest based on probable cause when such officer acted reasonably and in good faith and in compliance with this chapter and the statewide policy as established by the secretary of public safety.
Whenever any law officer investigates an incident of domestic violence, the officer shall immediately file a written incident report in accordance with the standards of the officer’s law enforcement agency and, wherever possible, in the form of the National Incident-Based Reporting System, as defined by the Federal Bureau of Investigation. The latter information may be submitted voluntarily by the local police on a monthly basis to the crime reporting unit of the criminal history systems board.
The victim shall be provided a copy of the full incident report at no cost upon request to the appropriate law enforcement department.
When a judge or other person authorized to take bail bails any person arrested under the provisions of this chapter, he shall make reasonable efforts to inform the victim of such release prior to or at the time of said release.
When any person charged with or arrested for a crime involving abuse under this chapter is released from custody, the court or the emergency response judge shall issue, upon the request of the victim, a written no-contact order prohibiting the person charged or arrested from having any contact with the victim and shall use all reasonable means to notify the victim immediately of release from custody. The victim shall be given at no cost a certified copy of the no-contact order.
record search; service of order; enforcement; violations Section 7. When considering a complaint filed under this chapter, a judge shall cause a search to be made of the records contained within the statewide domestic violence record keeping system maintained by the office of the commissioner of probation and shall review the resulting data to determine whether the named defendant has a civil or criminal record involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against the named defendant, a judge shall order that the appropriate law enforcement officials be notified and shall order that any information regarding the defendant’s most recent whereabouts shall be forwarded to such officials. In all instances where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner. In all instances where such an imminent threat of bodily injury is found to exist, the judge shall notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable.
Whenever the court orders under sections eighteen, thirty-four B, and thirty-four C of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, sections three, four and five of this chapter, or sections fifteen and twenty of chapter two hundred and nine C, the defendant to vacate, refrain from abusing the plaintiff or to have no contact with the plaintiff or the plaintiff’s minor child, the register or clerk-magistrate shall transmit two certified copies of each such order and one copy of the complaint and summons forthwith to the appropriate law enforcement agency which, unless otherwise ordered by the court, shall serve one copy of each order upon the defendant, together with a copy of the complaint, order and summons and notice of any suspension or surrender ordered pursuant to section three B of this chapter. The law enforcement agency shall promptly make its return of service to the court.
Law enforcement officers shall use every reasonable means to enforce such abuse prevention orders. Law enforcement agencies shall establish procedures adequate to insure that an officer on the scene of an alleged violation of such order may be informed of the existence and terms of such order. The court shall notify the appropriate law enforcement agency in writing whenever any such order is vacated and shall direct the agency to destroy all record of such vacated order and such agency shall comply with that directive.
Each abuse prevention order issued shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.
Any violation of such order or a protection order issued by another jurisdiction shall be punishable by a fine of not more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house of correction, or by both such fine and imprisonment. In addition to, but not in lieu of, the forgoing penalties and any other sentence, fee or assessment, including the victim witness assessment in section 8 of chapter 258B, the court shall order persons convicted of a crime under this statute to pay a fine of $25 that shall be transmitted to the treasurer for deposit into the General Fund. For any violation of such order, the court shall order the defendant to complete a certified batterer’s intervention program unless, upon good cause shown, the court issues specific written findings describing the reasons that batterer’s intervention should not be ordered or unless the batterer’s intervention program determines that the defendant is not suitable for intervention. The court shall not order substance abuse or anger management treatment or any other form of treatment as a substitute for certified batterer’s intervention. If a defendant ordered to undergo treatment has received a suspended sentence, the original sentence shall be reimposed if the defendant fails to participate in said program as required by the terms of his probation. If the court determines that the violation was in retaliation for the defendant being reported by the plaintiff to the department of revenue for failure to pay child support payments or for the establishment of paternity, the defendant shall be punished by a fine of not less than one thousand dollars and not more than ten thousand dollars and by imprisonment for not less than sixty days; provided, however, that the sentence shall not be suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served sixty days of such sentence.
When a defendant has been ordered to participate in a treatment program pursuant to this section, the defendant shall be required to regularly attend a certified or provisionally certified batterer’s treatment program. To the extent permitted by professional requirements of confidentiality, said program shall communicate with local battered women’s programs for the purpose of protecting the victim’s safety. Additionally, it shall specify the defendant’s attendance requirements and keep the probation department informed of whether the defendant is in compliance.
In addition to, but not in lieu of, such orders for treatment, if the defendant has a substance abuse problem, the court may order appropriate treatment for such problem. All ordered treatment shall last until the end of the probationary period or until the treatment program decides to discharge the defendant, whichever comes first. When the defendant is not in compliance with the terms of probation, the court shall hold a revocation of probation hearing. To the extent possible, the defendant shall be responsible for paying all costs for court ordered treatment.
In each instance where there is a violation of an abuse prevention order or a protection order issued by another jurisdiction, the court may order the defendant to pay the plaintiff for all damages including, but not limited to, cost for shelter or emergency housing, loss of earnings or support, out-of-pocket losses for injuries sustained or property damaged, medical expenses, moving expenses, cost for obtaining an unlisted telephone number, and reasonable attorney’s fees.
Any such violation may be enforced in the superior, the district or Boston municipal court departments. Criminal remedies provided herein are not exclusive and do not preclude any other available civil or criminal remedies. The superior, probate and family, district and Boston municipal court departments may each enforce by civil contempt procedure a violation of its own court order.
The provisions of section eight of chapter one hundred and thirty-six shall not apply to any order, complaint or summons issued pursuant to this section.
Section 8. The records of cases arising out of an action brought under the provisions of this chapter where the plaintiff or defendant is a minor shall be withheld from public inspection except by order of the court; provided, that such records shall be open, at all reasonable times, to the inspection of the minor, said minor’s parent, guardian, attorney, and to the plaintiff and the plaintiff’s attorney, or any of them.
The plaintiff’s residential address, residential telephone number and workplace name, address and telephone number, contained within the court records of cases arising out of an action brought by a plaintiff under the provisions of this chapter, shall be confidential and withheld from public inspection, except by order of the court, except that the plaintiff’s residential address and workplace address shall appear on the court order and accessible to the defendant and the defendant’s attorney unless the plaintiff specifically requests that this information be withheld from the order. All confidential portions of the records shall be accessible at all reasonable times to the plaintiff and plaintiff’s attorney, to others specifically authorized by the plaintiff to obtain such information, and to prosecutors, victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victim’s counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, and law enforcement officers, if such access is necessary in the performance of their duties. The provisions of this paragraph shall apply to any protection order issued by another jurisdiction, as defined in section 1, that is filed with a court of the commonwealth pursuant to section 5A. Such confidential portions of the court records shall not be deemed to be public records under the provisions of clause twenty-sixth of section 7 of chapter 4.
Section 9. The administrative justices of the superior court, probate and family court, district court, and the Boston municipal court departments shall jointly promulgate a form of complaint for use under this chapter which shall be in such form and language to permit a plaintiff to prepare and file such complaint pro se.
Section 1. As used in this chapter the following words, unless the context requires otherwise, shall have the following meanings:—“Contestant”, a person who claims a legal right to custody or visitation with respect to a child;“Custody determination”, any court order, instruction or judgment, whether temporary or final, providing for the custody of or visitation rights with a child; it shall not be deemed to include any order or judgment concerning other child-related matters except to the extent such order of judgment contains a custody determination as above-stated;“Custody proceeding”, includes proceedings in which a custody determination is one of several issues presented for resolution, such as an action for divorce or separation, guardianship, and care and protection;“Judgment” or “Custody judgment”, a custody determination made in a custody proceeding, and includes an initial judgment and a modification judgment;“Home state”, the state in which the child immediately preceding the date of commencement of the custody proceeding resided with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period;“Initial judgment”, the first custody determination concerning a particular child;“Modification judgment”, a custody determination which modifies or replaces a prior custody determination, whether made by the court which rendered the prior determination or by another court;“Physical custody”, actual possession and control of a child;“Person acting as parent”, a person other than a parent who has physical custody of a child and who has either been awarded custody of a child or claims a legal right to custody and includes an authorized social service agency exercising legal or physical custody of a child; and“Parent”, a biological, foster, or adoptive parent whose parental rights have not previously been terminated;“State”, any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.
of information; orders to appear within state; expenses Section 10. (a) A court of the commonwealth may request the appropriate court of another state to hold a hearing to adduce evidence, to order a party to produce or give evidence under other procedures of that state, or to have an investigation made with respect to the custody of a child involved in proceedings pending in the court of the commonwealth; and to forward to the court of the commonwealth certified copies of the transcript of the record of the hearing, the evidence otherwise adduced, or any investigation prepared in compliance with the request. The cost of these services may be assessed against the parties.
(b) A court of the commonwealth may request the appropriate court of another state to order a party to custody proceedings pending in the court of the commonwealth to appear in the proceedings, and if that party has physical custody of the child, to appear with the child. The request may state that travel and other reasonable and necessary expenses of the party and of the child whose appearance is desired may be assessed against another party or may otherwise be paid.
evidentiary hearings within state; transfer of information; orders to appear in foreign court; expenses Section 11. (a) Upon request of the court of another state the courts of the commonwealth which are competent to hear custody matters may order a person in the commonwealth to appear at a hearing to adduce evidence or to produce or give evidence under other procedures available in the commonwealth or may order investigations to be made for use in a custody proceeding in another state. A certified copy of the transcript of the record of the hearing or the evidence otherwise adduced and of any investigation shall be forwarded by the clerk or register of the court to the requesting court.
(b) Upon request of the court of another state a competent court of the commonwealth may order a person in the commonwealth to appear alone or with the child in a custody proceeding in another state. The court may condition compliance with the request upon assurance by the other state that travel and other necessary expenses will be advanced or reimbursed.
Notwithstanding any provision of this chapter to the contrary, no child shall be ordered or compelled to appear or attend such proceeding in another state when, after a hearing a judge makes a finding that there is probable cause to believe that such child may be placed in jeopardy or exposed to risk of mental or physical harm by such return to said other state.
within state; enforcement of judgment within state; expenses Section 12. (a) A certified copy of a custody judgment of another state may be filed in the office of the clerk or register of any court of competent jurisdiction in the commonwealth. The clerk or register shall treat the judgment in the same manner as a custody judgment of a court of the commonwealth. A custody judgment so filed has the same effect and shall be enforced in like manner as a custody judgment rendered by a court of the commonwealth.
(b) A person violating a custody judgment of another state the violation of which makes it necessary to enforce the judgment in the commonwealth may be required to pay the reasonable and necessary travel, witness and other expenses, including attorneys’ fees, incurred by the party entitled to custody of the child.
Section 13. In any custody proceeding in the commonwealth the court shall preserve the pleadings, orders and judgments and any record that has been made of its hearings, investigations and other pertinent documents until the child reaches eighteen years of age. Upon appropriate request of the court of another state and receipt of payment therefor the court shall forward to the other court certified copies of any or all of such documents.
recognition Section 14. To the extent that the legal institutions of other nations have rendered custody determinations in substantial conformity with the provisions of this chapter, the courts of the commonwealth shall grant due recognition to such determinations.
Section 2. (a) Any court which is competent to decide child custody matters has jurisdiction to make a custody determination by initial or modification judgment if:(1) the commonwealth (i) is the home state of the child on the commencement of the custody proceeding, or (ii) had been the child’s home state within six months before the date of the commencement of the proceeding and the child is absent from the commonwealth because of his or her removal or retention by a person claiming his or her custody or for other reasons, and a parent or person acting as parent continues to reside in the commonwealth; or(2) it appears that no other state would have jurisdiction under paragraph (1) and it is in the best interest of the child that a court of the commonwealth assume jurisdiction because (i) the child and his or her parents, or the child and at least one contestant, have a significant connection with the commonwealth, and (ii) there is available in the commonwealth substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or(3) the child is physically present in the commonwealth and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child from abuse or neglect or for other good cause shown, provided that in the event that jurisdictional prerequisites are not established pursuant to any other paragraph of this subsection and a court of another state shall be entitled to assert jurisdiction under any other subparagraph of this paragraph then a court exercising jurisdiction pursuant to this clause of paragraph (3) may do so only by entering such temporary order or orders as it deems necessary unless the court of the other state has declined to exercise jurisdiction, has stayed its proceedings or has otherwise deferred to the jurisdiction of a court of the commonwealth; or(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.
(b) Except under subparagraphs (3) and (4) of paragraph (a), physical presence in the commonwealth of the child or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of the commonwealth to make a custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to make a custody determination.
(d) A court of the commonwealth shall not exercise jurisdiction in any custody proceeding commenced during the pendency of a proceeding in a court of another state where such court of that state is exercising jurisdiction consistently with the provisions of this section for the purpose of making a custody determination, except in accordance with paragraph (3) of subsection (a), unless the court of the other state shall decline jurisdiction pursuant to paragraph (4) of subsection (a) or shall stay its proceedings or otherwise defer to the jurisdiction of a court of the commonwealth.
(e) If a court of another state has made a custody determination in substantial conformity with this chapter, a court of the commonwealth shall not modify that determination unless (1) it appears to the court of the commonwealth that the court which made the custody determination does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this chapter or that such court has declined to assume jurisdiction to modify its determination and (2) a court of the commonwealth now has jurisdiction pursuant to this chapter.
under oath; disclosure of addresses Section 3. (a) Every party in any custody proceeding shall state in an affidavit which shall be filed together with his first pleading the following information:—(1) the child’s present address of residence;(2) each address at which the child has resided during the two years immediately prior to the filing of the instant custody proceeding;(3) the names and, if known, the current residential addresses or, if unknown, the last and usual residential addresses, of all persons who have been parties to any custody proceedings involving the child during the said two-year period, other than any person whose rights have been terminated in any parental rights termination proceeding, and any other persons who, according to the knowledge and belief of the affiant, claim a legal right to the custody or physical possession of the child; and(4) whether or not the party knows of or has participated in any prior custody proceeding involving the child in the commonwealth or in any other jurisdiction and the nature of his participation, as party, witness, or in any other capacity, in such prior proceeding.
(b) Unless the same have already been filed by another party, every party in any custody proceeding shall attach to the affidavit a certified copy of each pleading and of any determination entered in any custody proceeding he knows of or has participated in involving the child in the commonwealth or in any other jurisdiction.
(c) The court may examine any one or more of the parties under oath concerning the information required to be furnished under this section and concerning other matters pertinent to any jurisdictional or other issues before the court.
(d) Each party shall amend the affidavit at any time after filing to inform the court of any custody proceeding filed in any jurisdiction after the date of filing of the instant custody proceeding of which the affiant becomes aware after filing the affidavit and shall further amend the affidavit to include the names and addresses, in conformity with paragraph (3) of subsection (a), of any person of whom the affiant becomes aware after filing the affidavit who claims a legal right to the custody or physical possession of the child.
(e) Notwithstanding the provisions of this section, a court may waive disclosure of the present or prior address of the child or of a contestant when such waiver is necessary to protect the child or the contestant from physical or emotional abuse. Application for an order waiving disclosure under this paragraph shall be made upon such notice as the court shall prescribe. The court shall waive disclosure whenever the present or prior address of the child or of a contestant is a shelter for battered persons and their dependent children. The reasons for waiver of any disclosure requirement of this section shall be stated by the court in the record of the custody proceeding.
(f) The court may impose sanctions against any party who fails to act in conformity with this section without leave of court granted for good cause shown.
Section 4. (a) After examination of the pleadings, affidavits, certified copies of the documentation relative to other custody proceedings and such oral testimony as it may require, the court shall determine the proper parties to the custody proceeding.
(b) During the pendency of the proceeding, the court may require the joinder of additional parties and in that event, the court shall specify that such additional parties be served with process in accordance with section five or six, as applicable, or that they be otherwise notified in such manner as the court shall determine.
parties Section 5. (a) Reasonable notice in conformity with section six and an opportunity to be heard shall be given to the contestants, to any parent whose parental rights have not been previously terminated, to any person acting as parent, and to any other persons designated proper parties by the court pursuant to section four, provided that in the event a court of the commonwealth assumes jurisdiction pursuant to clause (ii) of paragraph (3) of subsection (a) of section two, then the court may waive such notice requirement for such period as may be allowed under applicable court rules.
(b) Any notice shall include the nature of the action, copies of all pleadings filed with the court, and the statement that any person so notified may apply to the court concerning allocation of the costs of those reasonable and necessary expenses to be incurred in connection with the custody proceeding in accordance with applicable sections of this chapter.
Section 6. (a) Notice to a person in the commonwealth shall be given in accordance with the applicable Massachusetts rules of court or in such other manner as is prescribed by law.
(b) Notice required for the exercise of jurisdiction over a person outside the commonwealth shall be given in accordance with the applicable Massachusetts Rules of Court or statute or, in the discretion of the court, in the manner prescribed by the law of the place in which the service is made concerning service of process in an action of its court of general jurisdiction, provided, however, that in no event shall notice under this paragraph be served, mailed, delivered or last published less than twenty days before any custody determination is made in this state, other than a determination made pursuant to clause (ii) of paragraph (3) of subsection (a) of section two.
(c) Proof of service outside the commonwealth may be made by affidavit of the individual who made the service, in accordance with the applicable law or the Massachusetts rules of court, in accordance with the order pursuant to which the service is made, or, in the discretion of the court, otherwise in accordance with the law of the place in which the service is made.
(d) Notice is not required to be given to a contestant who submits to the jurisdiction of the court.
forum; factors Section 7. (a) A court which has jurisdiction pursuant to section two may decline to exercise its jurisdiction at any time prior to making a custody determination upon finding that its assumption of jurisdiction would be (i) violative of the purposes of this chapter; or (ii) would be based upon the illegal or otherwise wrongful conduct of a party; or (iii) would constitute an inconvenient forum and that a court of another state would constitute a more convenient forum.
(b) A court may decline jurisdiction for any of the reasons set forth in paragraph (a) upon motion of a party or of any representative of the child entitled to appear before the court or upon the court’s own motion.
(c) In order to determine whether it is the appropriate forum, a court of the commonwealth may, in its discretion, at any time during the pendency of the custody proceeding, communicate and exchange information with a court or courts of any other relevant jurisdiction.
(d) For the purposes of this section, a court may consider the following factors:(1) whether another state is or recently was the child’s home state;(2) whether another state has a closer connection with the child and his family or with the child and one or more of the contestants;(3) whether more substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is available or whether such evidence is more readily available in another state;(4) whether the parties have agreed on another forum which is not less appropriate; and(5) whether the exercise of jurisdiction by a court of the commonwealth would contravene any of the purposes of this chapter.
(e) If a court shall find that a court of another jurisdiction is or may be a more appropriate forum under the terms of this chapter for the adjudication of the custody proceeding, it may do one or more of the following:(1) dismiss the proceeding with or without prejudice;(2) vacate any order or judgment already entered;(3) stay the proceeding upon condition that a custody proceeding be initiated or prosecuted in another state in a timely manner or upon any other condition that the court might deem just;(4) retain jurisdiction over any action to which the custody proceeding is incident, while declining to render a custody determination;(5) enter such temporary order or orders as may be required, in the court’s discretion, pursuant to clause (ii) of paragraph (3) of section two;(6) assess any or all of the costs of the custody proceeding in this state, having due regard for the purposes of this chapter, including the reasonable travel and other expenses of any party and his or her witnesses, the reasonable attorneys’ fees of any party, the costs of the court’s communications and information exchanges with other courts and the fees and costs of any person entitled to appear before the court as the representative of a child;(7) assess sanctions against any party whom the court finds has engaged in illegal or otherwise wrongful conduct;(8) enter any other order or judgment which may be meet and just under the circumstances of the case.
(f) A court shall communicate to the court of any other relevant jurisdiction any determination or finding made pursuant to this section.
Section 8. (a) The court may order any party to the proceeding who is in the commonwealth to appear personally before the court. If that party has physical custody of the child the court may order that he or she appear personally with the child.
(b) If a party to the proceeding whose presence is desired by the court is outside the commonwealth with or without the child, the court may order that the notice given under section five include a statement directing the party to appear personally with or without the child and declaring that failure to appear may result in a decision adverse to that party.
(c) If a party to the proceeding who is outside the commonwealth is directed to appear under paragraph (b) or desires to appear personally before the court with or without the child, the court may require another party to pay to the clerk or register of the court travel and other necessary expenses of the party so appearing and of the child if this is just and proper under the circumstances.
Section 9. In addition to other procedural devices available to a party, any party to the proceeding or a guardian ad litem or other representative of the child may adduce testimony of witnesses, including parties and the child, by deposition or otherwise, in another state. The court on its own motion may direct that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony shall be taken.
responsibility for support Section 1. Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children. It is the purpose of this chapter to establish a means for such children either to be acknowledged by their parents voluntarily or, on complaint by one or the other of their parents or such other person or agency as is authorized to file a complaint by section five, to have an acknowledgment or adjudication of their paternity, to have an order for their support and to have a declaration relative to their custody or visitation rights ordered by a court of competent jurisdiction. For the purpose of this chapter, the term “child born out of wedlock” shall refer to any child born to a man and woman who are not married to each other and shall include a child who was conceived and born to parents who are not married to each other but who subsequently intermarry and whose paternity has not been acknowledged by word or deed or whose paternity has not been adjudicated by a court of competent jurisdiction; and a child born to parents who are not married to each other whose paternity has been adjudicated by a court of competent jurisdiction, including an adjudication in a proceeding pursuant to this chapter or prior law. Every person is responsible for the support of his child born out of wedlock from its birth up to the age of eighteen, or, where such child is domiciled in the home of a parent and principally dependent upon said parent for maintenance, to age twenty-one. Each person charged with support under this section shall be required to furnish support according to his financial ability and earning capacity pursuant to the provisions of this chapter.
Section 10. (a) Upon or after an adjudication or voluntary acknowledgment of paternity, the court may award custody to the mother or the father or to them jointly or to another suitable person as hereafter further specified as may be appropriate in the best interests of the child.
In awarding custody to one of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent. The court shall also consider where and with whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter and whether one or both of the parents has established a personal and parental relationship with the child or has exercised parental responsibility in the best interests of the child.
In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement pursuant to section eleven or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests.
(b) Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock. In the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage.
(c) If either parent is dead, unfit or unavailable or relinquishes care of the child or abandons the child and the other parent is fit to have custody, that parent shall be entitled to custody.
(d) If a person who is not a parent of the child requests custody, the court may order custody to that person if it is in the best interests of the child and if the written consent of both parents or the surviving parent is filed with the court. Such custody may also be ordered if it is in the best interests of the child and if both parents or the surviving parent are unfit to have custody or if one is unfit and the other files his written consent in court.
(e) In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, “abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury. “Serious incident of abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. For purposes of this section, “bodily injury” and “serious bodily injury” shall have the same meanings as provided in section 13K of chapter 265.
A probate and family court’s finding by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this section, an “abusive parent” shall mean a parent who has committed a pattern of abuse or a serious incident of abuse.
For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admissible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the probate and family court that a pattern or serious incident of abuse has occurred.
If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child’s best interests and provides for the safety and well-being of the child.
If ordering visitation to the abusive parent the court shall provide for the safety and well-being of the child, and the safety of the abused parent. The court may consider:(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;(b) ordering visitation supervised by an appropriate third party, visitation center or agency;(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;(e) ordering the abusive parent to pay the costs of supervised visitation;(f) prohibiting overnight visitation;(g) requiring a bond from the abusive parent for the return and safety of the child;(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.
Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing.
agreements regarding custody, support and visitation Section 11. (a) A written voluntary acknowledgment of parentage executed jointly by the putative father, whether a minor or not, and the mother of the child, whether a minor or not, and filed with the registrar of vital records and statistics or with the court shall be recognized as a sufficient basis for seeking an order of support, visitation or custody with respect to the child without further proceedings to establish paternity, and no judicial proceeding shall be required or permitted to ratify an acknowledgment that has not been challenged pursuant to this section. A report, prepared on an electronic system of birth registration approved by the commissioner of public health and indicating that an acknowledgment pursuant to this chapter has been executed in accordance with section 3C of chapter 46 and filed with the registrar of vital records and statistics, shall be presumed to be a sufficient basis for seeking an order of support, visitation or custody without further proceedings to establish paternity. The voluntary acknowledgment shall be attested to before a notary public and shall have the legal effect as provided in this section. Unless either signatory rescinds the acknowledgment within 60 days of the date of signing as provided in this section, the acknowledgment shall establish paternity as of the date it has been signed by such putative father and mother and shall have the same force and effect as a judgment of paternity, subject to challenge within one year only on the basis of fraud, duress or material mistake of fact; provided, however, that if, prior to the expiration of the 60-day period, the signatory is a party to an administrative or judicial proceeding related to the child, including a proceeding to establish child support, visitation or custody, and fails to rescind the acknowledgment at the time of such proceeding, the acknowledgment shall thereafter have the same force and effect as a judgment, subject to challenge only as provided in this section. The person seeking to rescind the acknowledgment shall, within 60 days of signing the acknowledgment, file a petition in the probate and family court in the county in which the child and one of the parents resides seeking to rescind the acknowledgment, with notice to the other parent. If neither of the parents lives in the same county as the child, then such complaint shall be filed in the county where the child lives. If the child whose paternity is challenged is a recipient of public assistance and the department of transitional assistance, the department of social services, the division of medical assistance or any other public assistance program has not been made a party, or if the child is receiving child support enforcement services from the IV-D agency pursuant to chapter 119A, the court shall notify the IV-D agency. The person seeking to rescind the acknowledgment shall bear the burden of proof in such proceeding. The responsibilities of a signatory arising from the acknowledgment shall not be suspended during the pendency of such challenge unless the court so orders for good cause shown. If either party rescinds the acknowledgment in a timely fashion, the court shall order genetic marker testing and proceed to adjudicate paternity or nonpaternity in accordance with this chapter; provided, however, that the rescinded acknowledgment shall constitute the proper showing required for an order to submit to such testing; and provided further, that the rescinded acknowledgment shall be admissible as evidence of the putative father’s paternity and shall serve as sufficient basis for admitting the report of the results of genetic marker tests. Upon adjudication of nonpaternity, the court shall instruct the registrar of vital records and statistics as provided in section 13 of chapter 46 to amend the birth record of the child in accordance with the order of the court.
(b) If a mother and father execute a voluntary acknowledgment of parentage as provided in (a), they may also make agreements regarding custody, support and visitation. Such agreements may be filed with any court with jurisdiction pursuant to this chapter; provided, that any such agreement which includes issues of custody or visitation must be filed with a division of the probate and family court department in the judicial district or county in which the child and one of the parents lives. Such agreements, if filed with and approved by the court shall have the same force and effect as a judgment of the court; provided, however, that the court shall have the same power to investigate the facts regarding custody, support and visitation prior to entering an order relative to those issues as it would have if no agreement had been filed; and provided further, that an agreement regarding custody and visitation shall be approved only if the court finds it to be in the best interests of the child.
(c) Voluntary acknowledgments and agreements made pursuant to this chapter shall be acknowledged in the presence of a notary public and shall include the residence addresses and social security numbers of each of the parents, the residence address of the child and, if available, the social security number of the child.
(d) A voluntary acknowledgment of parentage taken outside of the commonwealth shall be valid for the purposes of this section if it was taken in accordance with the laws of the state or the country where it was executed.
Section 12. In actions under this chapter, the trial shall be by the court without a jury. In an action to establish paternity, the court shall, upon request of any party, exclude the general public from the room where the trial is held and may admit only persons directly interested in the case, including officers of the court and witnesses.
records Section 13. In an action to establish paternity or in which paternity of a child is an issue, all complaints, pleadings, papers, documents or reports filed in connection therewith, docket entries in the permanent docket and record books shall be segregated and unavailable for inspection only if the judge of the court where such records are kept, for good cause shown, so orders or the person alleged to be the father is adjudicated not to be the father of the child; provided, however, that the child, the child’s mother, the person adjudicated to be the father and the department of transitional assistance, the department of social services, the division of medical assistance or any other public assistance program and the IV-D agency as set forth in chapter 119A, when the child who is or was the subject of the complaint is a recipient of public assistance or the attorney for any of them, and the department of social services, when the child who is or was the subject of the complaint is within the care and protection of the department of social services, is the subject of a petition for such care or protection pursuant to chapter 119 or is the subject of a petition to dispense with consent for adoption pursuant to subsection (b) of section 3 of chapter 210, shall have access to and the right to obtain copies of the papers, docket books and judgments in actions pursuant to this chapter. For good cause shown, which may be made ex parte or upon credible evidence, parties may file a complaint without the address, and the court shall impound a party’s address by excluding it from the complaint and from all other court documents and testimony, and shall ensure that the address is kept confidential from each other party except the IV-D agency as set forth in chapter 119A.
Section 14. An action to establish paternity of a child may be instituted during pregnancy of the mother but shall only be filed by the mother or her representative or by the IV-D agency as set forth in chapter 119A on behalf of the mother. In the case of any complaint brought prior to the birth of the child, no final judgment on the issue of paternity shall be made until after the birth of the child; provided, however, that the court may order temporary support or health care coverage.
required to be given to petitioner; domestic violence record search Section 15. At any time pursuant to an action under this chapter, the court may upon motion of any party or on its own motion issue a temporary order or final judgment including a vacate, restraining or no-contact order to protect a party or child. Any such order or judgment, including a custody provision if issued by a probate court, shall be served as specified under sections four and seven of chapter two hundred and nine A and shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE. Criminal violations of such orders shall be enforced pursuant to section seven of chapter two hundred and nine A.
The court may, in like manner, upon motion of any party or of a next friend on behalf of the child, and upon notice to the other parties, enter temporary orders providing for the support of the child or relative to the care and custody of the child or visitation rights with the child in accordance with the provisions of sections nine and ten.
All orders entered pursuant to this section, unless modified or revoked pursuant to section twenty or twenty-three of chapter two hundred and nine C, shall continue in force and be incorporated in the final judgment. Violations of any order or judgment may be punished as contempt.
Upon the filing of a request for an order to protect a party or a child under the provisions of the first paragraph of this section, a petitioner shall be informed that proceedings hereunder are civil in nature and that violations of orders issued hereunder are criminal in nature. Further, a petitioner shall be given information prepared by the appropriate district attorney’s office that other criminal proceedings may be available and such petitioner shall be instructed by such district attorney’s office relative to the procedures required to initiate criminal proceedings including, but not limited to, a complaint for a violation of section forty-three of chapter two hundred and sixty-five. Whenever possible, a petitioner shall be provided with such information in the petitioner’s native language.
When considering a request for relief pursuant to this section, a judge shall cause a search to be made of the records contained within the statewide domestic violence record keeping system maintained by the office of the commissioner of probation and shall review the resulting data to determine whether the named defendant has a civil or criminal record involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against the named defendant, a judge shall order that the appropriate law enforcement officials be notified and shall order that any information regarding the defendant’s most recent whereabouts shall be forwarded to such officials. In all instances where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner. In all instances where such an imminent threat of bodily injury is found to exist, the judge shall notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable.
costs of tests; admissibility of evidence. Section 16. (a) Both the plaintiff and the defendant are competent to testify in proceedings hereunder.
(b) Upon refusal of a witness, including a party, to testify under oath and produce evidence, the court may order such witness or party to testify under oath and produce evidence concerning all relevant facts. If a witness or party refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from such refusal.
(c) In an action pursuant to this chapter, the mother and the man alleged to be the father shall be competent to testify and no privilege or disqualification created under chapter two hundred and thirty-three shall prohibit testimony by a spouse or former spouse which is otherwise competent. If the mother is or was married, both she and her husband or her former husband may testify to non-access and parentage of the child.
(d) In an action to establish paternity, testimony relating to sexual access to the mother by an unidentified man at any time or by an identified man at any time other than the probable time of conception of the child is inadmissible in evidence unless offered by the mother.
(e) In an action to establish paternity, the court may view the mother, the child, and the putative father to note any resemblance among the parties notwithstanding the absence of expert testimony.
(f) Copies of bills for genetic marker tests and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, shall be admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary and customary. Nothing in this section shall be construed to limit the right of any party to the action or the IV-D agency to summon, at its own expense, a physician, agent of a hospital or other individual for the purpose of examination with respect to such bills or to rebut the contents thereof or for any other purpose to limit the right of a party or the IV-D agency to summon any other person to testify in respect to such bills or for any other purpose.
(g) All other evidence relevant to the issue of paternity of the child, custody of a child or support of a child shall also be admissible.
submit to test; costs Section 17. In an action under this chapter to establish paternity of a child born out of wedlock, the court shall, on motion of a party and upon a proper showing except as provided in this section, order the mother, the child and the putative father to submit to one or more genetic marker tests of a type generally acknowledged as reliable and performed by a laboratory approved by an accreditation body designated by the federal Secretary of Health and Human Services pursuant to Title IV, Part D of the Social Security Act. An affidavit by the mother or the putative father alleging that sexual intercourse between the mother and the putative father occurred during the probable period of conception shall be sufficient to establish a proper showing. If during the probable period of conception, the mother was married to someone other than the putative father, the court may order genetic marker tests only after notice pursuant to subsection (c) of section 6 to the spouse or former spouse. The court or the IV-D agency as provided in section 3A of chapter 119A may, order any person properly made a party under this chapter to submit to such testing. Unless a party objects in writing to the test results upon notice of the hearing date or within thirty days prior to the hearing, whichever is shorter, the report of the results of genetic marker tests, including a statistical probability of the putative father’s paternity based upon such tests, shall be admissible in evidence without the need for laying a foundation or other proof of authenticity or accuracy; provided, further, that such report shall not be considered as evidence of the occurrence of intercourse between the mother and the putative father; and provided, however, that such report shall not be admissible absent sufficient evidence of intercourse between the mother and the putative father during the period of probable conception. If such report indicates a statistical probability of paternity of ninety-seven percent or greater, there shall be a rebuttable presumption that the putative father is the father of such child and, upon motion of any party or on its own motion, the court shall issue a temporary order of support. If the report of the results of genetic marker tests or an expert’s analysis of inherited characteristics is disputed, the court may then order that an additional test be made at the same laboratory or different laboratory at the expense of the party requesting additional testing. Verified documentation of the chain of custody of genetic marker or other specimens is competent evidence to establish such chain of custody. The fact that any party refuses to submit to a genetic marker test shall be admissible and the court may draw an adverse inference from such refusal. The cost of making any tests ordered pursuant to this section shall, in the first instance, be chargeable against the party making the motion. The court in its discretion may order the costs of such testing to be apportioned among the parties provided, however, the court may not direct the IV-D agency as set forth in chapter 119A to pay for such tests, unless said IV-D agency is the moving party and provided further, that if the putative father is found to be the father, the court shall order the putative father to reimburse the IV-D agency or the other party. Payment for the costs of such tests shall be considered a necessary expense and if any party chargeable with the costs of the genetic marker tests is indigent as provided in section twenty-seven A of chapter two hundred and sixty-one, the court may direct payment of such costs by the commonwealth regardless of the type of tests requested by the moving party.
Section 18. Each judgment or order of support which is issued, reviewed or modified pursuant to this chapter shall conform to and shall be enforced in accordance with the provisions of chapter one hundred and nineteen A.
enforcement Section 19. A judgment of support issued in conclusion of a proceeding under this chapter or a temporary support order issued under this chapter may be enforced with one or more of the following methods:(1) contempt in accordance with sections thirty-four and thirty-four A of chapter two hundred and fifteen;(2) execution of the judgment;(3) attachment of or lien against property;(4) trustee process, in accordance with the provisions of chapter two hundred and forty-six;(5) equitable actions to reach and apply for the enforcement of judgments; and(6) any other civil remedy available for the enforcement of judgments or for the enforcement of support or custody orders entered under chapter two hundred and eight, and two hundred and nine, or received, entered or registered pursuant to chapter two hundred and nine D, including any remedy available under chapter 119A.
statistical information of parties; transmission to registrar Section 2. Paternity may be established by filing with the court, the clerk of the city or town where the child was born or the registrar of vital records and statistics an acknowledgment of parentage executed by both parents pursuant to section 11 or pursuant to an action to establish paternity filed pursuant to this chapter; provided, however, that if a judgment or finding of paternity has been issued by a court or administrative agency of competent jurisdiction under the law of another state or foreign country or if both parents executed a voluntary acknowledgment of parentage in accordance with the law of another state or foreign country, such judgment, finding or voluntary acknowledgment shall be accorded full faith and credit and paternity shall not be relitigated. Upon receipt of an acknowledgment of paternity, the clerk of such city or town shall forward the original acknowledgment to said registrar as provided in chapter 46. Upon receipt of an acknowledgment of parentage or upon an adjudication of paternity under this chapter, the court shall transmit to the registrar of vital records and statistics a certified copy of the acknowledgment or order establishing paternity, together with such statistical information as said registrar may require, upon such form and in such format as designated by said registrar, which shall include the name, residence, date of birth, place of birth and social security number of each of the parties and the child, the sex of the child, and such additional information as the commissioner of public health deems useful for statistical and research purposes. Actions to establish support obligations or for custody or visitation rights may also be filed pursuant to this chapter.
Section 20. A court with original jurisdiction pursuant to section three has continuing jurisdiction, upon a complaint filed by a person or agency entitled to file original actions, to modify judgments of support, custody or visitation; provided however, that no modification concerning custody or visitation shall be granted unless the court finds that a substantial change in the circumstances of the parties or the child has occurred and finds modification to be in the child’s best interests. Except as restricted by section twenty-three, the court may also modify a judgment to protect a party or child. In furtherance of the public policy that dependent children be maintained as completely as possible from the resources of their parents and upon a complaint filed after a judgment of support, orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines promulgated by the chief justice for administration and management or if there is a need to provide for the health care coverage of the child. A modification to provide for the health care coverage of the child shall be entered whether or not a modification in the amount of child support is necessary. There shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome the presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. The order shall be modified accordingly unless the inconsistency between the amount of the existing order and the amount of the order that would result from application of the guidelines is due to the fact that the amount of the existing order resulted from a rebuttal of the guidelines and that there has been no change in the circumstances which resulted in such rebuttal; provided, however, that even if the specific facts that justified departure from the guidelines upon entry of the original order remain in effect, the order shall be modified in accordance with the guidelines unless the court finds that the guidelines amount would be unjust or inappropriate under the circumstances and that the existing order is consistent with the best interests of the child. A modification of child support may enter notwithstanding an agreement of the parents that has independent legal significance. For cases being enforced by the IV-D agency as set forth in chapter 119A, a support order may also be modified in accordance with section 3B of said chapter 119A.
relationship Section 21. Any interested party may bring an action to determine the existence of a mother and child relationship. Insofar as practicable, the provisions of this chapter applicable to establishing paternity shall apply.
Section 22. (a) A decree or judgment entered on a petition filed pursuant to sections three or six of chapter two hundred and ten shall be a bar to a proceeding under this chapter.
(b) A proceeding under chapter two hundred and seven, two hundred and eight, two hundred and nine, two hundred and seventy-three, or two hundred and nine D shall not be a bar to any proceeding under this chapter. An action brought under this chapter may be consolidated with an action brought under chapters two hundred and seven, two hundred and eight, two hundred and nine or two hundred and nine D if both actions are pending in the same department of the trial court.
(c) If an action under chapter two hundred and seven, two hundred and eight, or two hundred and nine, is filed after the commencement of proceedings or after a judgment under this chapter, any order or judgment for support of a child issued in the annulment, divorce or separate support proceedings shall supersede any prior order or judgment for support of the same child under this chapter; and any assignment made under this chapter shall be superseded by an assignment made in the divorce, separate support, or annulment proceeding; provided, however, that nothing herein shall prevent the court in such annulment, separate support or divorce proceeding from entering an order or judgment enforcing any previous support order or judgment for support under this chapter which has not been paid, consistent with the provisions of section nine.
(d) No proceeding hereunder shall be barred by a prior finding or adjudication under any repealed sections of chapter two hundred and seventy-three or by the fact that a child was born prior to the effective date of this chapter.
Section 23. (a) If, after adjudication of paternity or voluntary acknowledgment of parentage, the parents of the child intermarry, any order or judgments of the court relative to support, custody, visitation and restraint on personal liberty shall be null and void and the court shall have no continuing jurisdiction over the parties under this chapter.
(b) If, after proceedings are commenced but before an adjudication of paternity is issued, the parents intermarry, the court may adjudicate paternity hereunder but shall have no other jurisdiction over the child or the parents under this chapter.
(c) An action under this chapter may be commenced after the intermarriage of the parents of the child only to determine paternity.
Section 24. The administrative justices of the district, Boston municipal and the probate and family court department of the trial court shall jointly promulgate forms for complaints, agreements and registrations of parentage for use under this chapter, which shall be in such form and language to permit a person to prepare and file such forms pro se.
enforcement of prior orders or judgments; juvenile court commitment proceedings; parents convicted of first degree murder Section 3. (a) The district, Boston municipal and the probate and family court departments of the trial court shall have concurrent jurisdiction over complaints to establish paternity or support and the registration of voluntary acknowledgments of parentage; provided, however, that the district and Boston municipal court departments shall have no jurisdiction of custody or visitation matters under this chapter. Complaints to establish paternity or support or for voluntary acknowledgments of parentage which also include a request for an order relative to custody or visitation shall be filed only in the probate and family court department. No court shall make an order providing visitation rights to any parent who has been convicted of murder in the first degree of the other parent of the child who is the subject of the order, unless such child is of suitable age to signify his assent and assents to such order; provided, further, that until such order is issued, no person shall visit, with the child present, a parent who has been convicted of murder in the first degree of the other parent of the child without the consent of the child’s custodian or legal guardian.
(b) Any party to an action for paternity or support which is pending or was previously adjudicated by the district or Boston municipal court departments who seeks an order relative to custody or visitation may, after the adjudication or voluntary acknowledgment of paternity and entry of an order or judgment for support, file an action in the probate and family court department in the county where the child resides to determine custody or visitation. The filing of the action in the probate and family court shall act to transfer the case from the district court or the Boston municipal court department to the probate and family court department. The register of probate shall make entry in the docket that the case shall thereafter be heard only in the probate and family court department. The party seeking transfer shall notify the parties, the district court or the Boston municipal court and, if applicable, the IV-D agency as set forth in chapter 119A that the action has been transferred to the probate and family court department. The clerk magistrate of the district court or the Boston municipal court shall make entry in the docket of such transfer.
(c) The juvenile court department shall have concurrent jurisdiction to adjudicate paternity and support and to accept registration of voluntary acknowledgments of parentage under this chapter, provided that actions brought under this chapter are joined or consolidated with actions brought under section twenty-four of chapter one hundred and nineteen and, provided further, that the action under section twenty-four of chapter one hundred and nineteen is initiated before the filing of a complaint under this chapter.
(d) Any action pursuant to this chapter that is pending or was previously adjudicated in the district court or Boston municipal court departments may be transferred by any party or by the IV-D agency as set forth in chapter 119A to the probate and family court department in the county where the child resides or, if the child does not reside in the commonwealth and a court of the commonwealth has jurisdiction under chapter 209D, in the county where one of the parents resides. An action shall be transferred upon the filing of the following documents with the probate and family court:— (1) a copy of the complaint; (2) a copy of the order of the district court or Boston municipal court, if any; (3) a copy of the findings of the court, if any; (4) a copy of the financial statements submitted by the parties, if any; (5) a copy of the worksheet used to calculate the amount of the child support order pursuant to the child support guidelines, if any; and (6) a copy of the docket maintained by the district court or the Boston municipal court, if any. Once transferred, the order of the district court or the Boston municipal court shall have the same force and effect, and shall be subject to the same procedures and defenses as an order of the probate and family court and may be enforced or modified in the same manner available to enforce or modify any judgment or order of the probate and family court. Transfer of an order pursuant to this section shall not limit the use of any enforcement remedy, whether judicial or administrative, that may be available and the probate and family court shall preserve all arrears that have accrued pursuant to the order of the district or Boston municipal court departments.
(e) An order or judgment for support entered in the juvenile court department shall remain in full force and effect and shall be enforced in the division of the juvenile court department in which the original order or judgment of support was entered during the pendency of an action pursuant to section twenty-four of chapter one hundred and nineteen. Six months after the dismissal or final order of commitment pursuant to section twenty-four of chapter one hundred and nineteen, the order or judgment of support shall expire. At the time of such dismissal or final order of commitment, the clerk-magistrate shall notify the parties and the IV-D agency, as set forth in chapter one hundred and nineteen A, of the date of expiration of the support order or judgment. If, before the expiration of the order or judgment of support, any of the parties or said IV-D agency files an action for support in the Boston municipal court department or the appropriate division of the district or probate and family court departments, the prior order or judgment shall be transferred to that court department and shall remain in full force and effect and shall be enforced and modified in said court department.
Section 4. Actions under this chapter to establish paternity, support, custody or visitation of a child shall be filed in the judicial district or county in which the child and one of the parents lives. If neither of the parents lives in the same judicial district or county as the child then the complaint shall be filed in the judicial district or county where the child lives. The fact that the child was conceived, was born, or lives outside the commonwealth does not bar a proceeding to establish paternity pursuant to this chapter. Service of the complaint shall be made in accordance with applicable rules of court. In addition to those otherwise authorized to serve civil process, any officer authorized under the laws of the commonwealth to serve criminal process may serve any process under this chapter.
voluntary acknowledgment of parentage; parties Section 5. (a) Complaints under this chapter to establish paternity, support, visitation or custody of a child may be commenced by the mother, whether a minor or not; by a person presumed to be or alleging himself to be the father, whether a minor or not; by the child, whether a minor or not; by the child’s guardian, next of kin, or other person standing in a parental relation to the child; by the parent or personal representative of the mother if the mother has died or has abandoned the child; by the parent or personal representative of the father if the father has died; by the authorized agent of the department of social services or any agency licensed under chapter twenty-eight A provided that the child is in their custody; or, if the child is or was a recipient of any type of public assistance, by the IV-D agency as set forth in chapter 119A on behalf of the department of transitional assistance, the department of social services, the division of medical assistance or any other public assistance program of the commonwealth; provided, however, that if the mother of the child was or is married and the child’s birth occurs during the marriage or within three hundred days of its termination by death, annulment or divorce, complaints to establish paternity under this chapter may not be filed by a person presumed to be or alleging himself to be the father unless he is or was the mother’s husband at the time of the child’s birth or conception.
(b) Voluntary acknowledgments of parentage may be executed by the mother and the putative father, whether either or both is a minor, and may be registered pursuant to section 11 only if the signatures of the mother and the father are notarized. If the mother of the child was or is married and the child’s birth occurs during the marriage or within 300 days of its termination by divorce, a voluntary acknowledgment of parentage naming the putative father may be executed by the mother and the putative father only if the mother and the person who was the spouse of the mother at the time of the child’s birth or conception sign an affidavit denying that the spouse is the father of the child; provided, however, that where the marriage has been terminated by annulment or by the death of either spouse, paternity of the putative father may only be established by filing a complaint to establish paternity as provided in this chapter. A mother and a putative father signing a voluntary acknowledgment of parentage at the hospital or thereafter at the office of the city or town clerk as part of the birth registration process pursuant to section 3C of chapter 46, with the department of transitional assistance, with the IV-D agency set forth in chapter 119A, with any agency designated by the federal Secretary of Health and Human Services or with any official of a court shall receive notice orally, or through the use of video or audio equipment, and in writing of alternatives to signing the acknowledgment, including the availability of genetic marker testing, as well as the benefits and responsibilities with respect to child support, custody and visitation that may arise from signing the acknowledgment, and subsequently filing the acknowledgment with the court or with the registrar of vital records and statistics as provided in this chapter.
(c) Any agency or person living with such child who is actually furnishing support to the child or, if the child who is the subject of an action under this chapter is a recipient of public assistance, the department of transitional assistance, shall be made a party to any action for paternity or support under this chapter.
(d) The IV-D agency as set forth in chapter 119A on behalf of the department of transitional assistance, the department of social services, the division of medical assistance or any other public assistance program may not file complaints solely for custody or visitation, but shall be permitted to file actions for paternity or support; provided, however, that said IV-D agency shall be permitted to maintain an action for paternity or support even if issues related to custody or visitation are raised.
(e) In actions under this chapter relative to custody or visitation, the child, if the child is fourteen years of age or older, shall be made a party to such action.
Section 6. (a) In all actions under this chapter a man is presumed to be the father of a child and must be joined as a party if:(1) he is or has been married to the mother and the child was born during the marriage, or within three hundred days after the marriage was terminated by death, annulment or divorce; or(2) before the child’s birth, he married or attempted to marry the mother by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child was born during the attempted marriage or within three hundred days after its termination; or(3) after the child’s birth, he married or attempted to marry the mother by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and(i) he agreed to support the child under a written voluntary promise, or(ii) he has engaged in any other conduct which can be construed as an acknowledgment of paternity; or(4) while the child is under the age of majority, he, jointly with the mother, received the child into their home and openly held out the child as their child; or(5) he has acknowledged paternity in a parental responsibility claim as provided in section four A of chapter two hundred and ten and the mother, having received actual notice thereof, has failed within a reasonable time, to object thereto; or(6) with respect to a child born before April 13, 1994, with his consent and the consent of the child’s mother, he is named as the child’s father on the birth certificate as provided in section one of chapter forty-six.
(b) Notwithstanding the provisions of subsection (a), a husband or former husband shall not be required to be joined as a party if non-paternity of the child has previously been adjudicated in a proceeding between the husband and the mother of such child in a court or administrative agency of competent jurisdiction.
(c) Notice to a party joined as herein provided shall be sufficient if the summons is mailed to the last known address by a form of mail requiring a receipt and, if actual notice shall not be made as aforesaid, by publishing a copy of the notice once in each of three successive weeks in a newspaper designated by the court.
of counsel; burden of proof Section 7. Actions under this chapter shall be civil actions. The IV-D agency, as set forth in chapter one hundred and nineteen A, may appear on behalf of a plaintiff in an action to establish paternity. In actions in which custody or visitation are contested, court may appoint counsel to represent either party whenever the interests of justice require.
The burden of proof in proceedings under this chapter to establish paternity shall be by clear and convincing evidence.
Section 8. On complaint to establish paternity, the court shall make a judgment establishing or not establishing paternity which shall be determinative for all purposes. Upon default of the defendant or his failure to personally appear, the court shall make a judgment establishing paternity if a showing is made that the complaint was served in accordance with the applicable rules of court and that the mother or putative father submits that sexual intercourse between the parties occurred during the probable period of conception. For good cause shown, the court may set aside an entry of default and, if a judgment has been entered, may likewise set it aside in accordance with rule 60(b) of the Massachusetts Rules of Domestic Relations Procedure. The age of the person alleged to be the father or mother in any action under this chapter, including a filing of a voluntary acknowledgment of parentage, shall not be a bar to the establishment of paternity or entry of a support order pursuant to section nine. If the child or the mother on behalf of the child is a recipient of public assistance and if the department of transitional assistance, the department of social services, the division of medical assistance or any other public assistance program has not been made a party as required by section five, the court shall notify the IV-D agency as set forth in chapter 119A of the judgment. If the judgment is at variance with the child’s birth certificate, the court shall order that a new birth certificate be issued under section thirteen of chapter forty-six.
financial statement; determination of amount; notice Section 9. (a) If the court finds that a parent is chargeable with the support of a child, the court shall make an order in accordance with subsection (c) requiring a parent to pay weekly or at other fixed periods a sum for and toward the current support and maintenance of such child. The court may make appropriate orders of maintenance, support and education for any child who has attained age eighteen but who has not attained age twenty-one, who is domiciled in the home of a parent and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree. Upon the petition of a party, the court shall also order past support for the period from the birth of the child to the entry of the order, taking into consideration the parent’s ability to pay under subsection (c) and any support provided by the parent during such period. An order or judgment of support pursuant to this chapter shall be entered notwithstanding the default of the defendant or his failure to appear personally upon a showing that notice was served in accordance with the applicable rules of court. For good cause shown, the court may set aside an entry of default and, if a judgment has been entered, may likewise set it aside in accordance with rule 60(b) of the Massachusetts Rules of Domestic Relations Procedure. When the court makes an order or judgment for maintenance or support of a child, said court shall determine whether the obligor under such order or judgment has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the child for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support judgment or order a requirement that the obligor exercise the option of additional coverage in favor of the child or obtain coverage for the child. An order may be entered requiring a parent chargeable with support to reimburse the mother or the department of transitional assistance or the division of medical assistance or division of health care finance and policy for medical expenses attributable to the child or associated with childbirth or resulting from the pregnancy.
(b) Upon demand by either party, including the IV-D agency, the other party shall be compelled to provide a financial statement, except that the IV-D agency shall not be compelled to provide a financial statement for a recipient of public assistance, and, provided further, if no party makes such a demand, the court may require a financial statement of each party.
(c) In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice for administration and management. There shall be a rebuttable presumption that the amount resulting from application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. In the event that no child support guidelines are in effect, the court shall make such order as is in the best interests of the child, taking into consideration the financial ability and earning capacity of the parents of the child.
(d) It shall not be a defense that the parent from whom support is sought has ceased to have custody or the right to custody of a minor child for whom support is sought, or that the custodial parent is interfering with the other parent’s right of visitation.
(e) If the child on whose behalf an order of support is sought is a recipient of benefits pursuant to chapter 117, 118 or 119 and the department of transitional assistance, the department of social services, the division of medical assistance or any other public assistance program has not been made a party as required by section 5, the court shall notify the IV-D agency of the order or judgment of support.
(f) In determining the amount to be paid, the court, in addition to applying the standards established by the chief justice for administration and management, shall determine whether the obligor is responsible for the maintenance or support of any other children of the obligor even if a court order for such maintenance or support does not exist. If the court determines that such responsibility does, in fact, exist and that such obligor is fulfilling such responsibility, such court shall take into consideration such responsibility in setting the amount to be paid under the current order for maintenance or support.
Chapter 209D: Section 1-101. Definitions (1) “Child” means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual’s parent or who is or is alleged to be the beneficiary of a support order directed to the parent.
(2) “Child support order” means a support order for a child, including a child who has attained the age of majority under the law of the issuing state.
(3) “Duty of support” means an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support.
(4) “Home state” means the state in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
(5) “Income” includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of the commonwealth.
(6) “Income-withholding order” means an order or other legal process directed to an obligor’s employer, other source of periodic income, as defined by 1A of chapter one hundred and nineteen A, or other debtor to withhold support from the income of the obligor.
(7) “Initiating state” a state from which a proceeding is forwarded or in which a proceeding is filed for forwarding to a responding state under this chapter or a law or procedure substantially similar to this chapter, the Uniform Reciprocal Enforcement of Support Act or the Revised Uniform Reciprocal Enforcement of Support Act.
(8) “Initiating tribunal” means the authorized tribunal in an initiating state.
(9) “Issuing state” means the state in which a tribunal issues a support order or renders a judgment determining parentage.
(10) “Issuing tribunal” means the tribunal that issues a support order or renders a judgment determining parentage.
(11) “Law” includes decisional and statutory law and rules and regulations having the force of law.
(12) “Obligee” means:(i) an individual to whom a duty of support is or is alleged to be owed or in whose favor a support order has been issued or a judgment determining parentage has been rendered;(ii) a state or political subdivision to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee; or(iii) an individual seeking a judgment determining parentage of the individual’s child.
(13) “Obligor” means an individual, or the estate of a decedent:(i) who owes or is alleged to owe a duty of support;(ii) who is alleged but has not been adjudicated to be a parent of a child; or(iii) who is liable under a support order.
(14) “Register” means to file a support order or judgment determining parentage in a tribunal.
(15) “Registering tribunal” means a tribunal in which a support order is registered.
(16) “Responding state” means a state in which a proceeding is filed or to which a proceeding is forwarded under this chapter or a law or procedure substantially similar to this chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.
(17) “Responding tribunal” means the authorized tribunal in a responding state.
(18) “Spousal-support order” means a support order for a spouse or former spouse of the obligor.
(19) “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term “state” shall include: (i) an Indian tribe; and (ii) a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this chapter, the Uniform Reciprocal Enforcement of Support Act or the Revised Uniform Reciprocal Enforcement of Support Act.
(20) “Support enforcement agency” means a public official or agency authorized to seek:(i) enforcement of support orders or laws relating to the duty of support;(ii) establishment or modification of child support;(iii) determination of parentage; or(iv) to locate obligors or their assets.
(21) “Support order” means a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, or reimbursement, and may include related costs and fees, interest, income withholding, attorney’s fees, and other relief.
(22) “Tribunal” means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.
Chapter 209D: Section 1-102. Tribunals of the commonwealth The probate and family court, the district court and the Boston municipal court departments of the trial court shall be the tribunals of the commonwealth.
Chapter 209D: Section 1-103. Remedies cumulative Remedies provided by this chapter are cumulative and do not affect the availability of remedies under other law.
Part 1. Extended Personal Jurisdiction Chapter 209D: Section 2-201. Bases for jurisdiction over nonresident In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of the commonwealth may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator pursuant to the provisions of chapter two hundred and twenty-three A or under this section. Personal jurisdiction may be exercised under this chapter if:(1) the individual is personally served with a notice within the commonwealth;(2) the individual submits to the jurisdiction of the commonwealth by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;(3) the individual resided with the child in the commonwealth;(4) the individual resided in the commonwealth and provided prenatal expenses or support for the child;(5) the child resides in the commonwealth as a result of the acts or directives of the individual;(6) the individual engaged in sexual intercourse in the commonwealth and the child may have been conceived by that act of intercourse;(7) the individual asserted parentage under the provisions of chapter forty-six or chapter two hundred and nine C; or(8) there is any other basis consistent with the constitutions of the commonwealth and the United States for the exercise of personal jurisdiction.
Part 1. Extended Personal Jurisdiction Chapter 209D: Section 2-202. Procedure when exercising jurisdiction over nonresident A tribunal of the commonwealth exercising personal jurisdiction over a nonresident under Section 2-201 may apply Section 3-316 (Special Rules of Evidence and Procedure) to receive evidence from another state, and Section 3-318 (Assistance with Discovery) to obtain discovery through a tribunal of another state. In all other respects, Articles 3 through 7 do not apply and the tribunal shall apply the procedural and substantive law of the commonwealth, including the rules on choice of law other than those established by this chapter.
Part 2. Proceedings Involving Two or More States Chapter 209D: Section 2-203. Initiating and responding tribunal of the commonwealth Under this chapter, a tribunal of the commonwealth may serve as an initiating tribunal to forward proceedings to another state and as a responding tribunal for proceedings initiated in another state.
Part 2. Proceedings Involving Two or More States Chapter 209D: Section 2-204. Simultaneous proceedings in another state (a) A tribunal of the commonwealth may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a petition or comparable pleading is filed in another state only if:(1) the petition or comparable pleading in the commonwealth is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state;(2) the contesting party timely challenges the exercise of jurisdiction in the other state; and(3) if relevant, the commonwealth is the home state of the child.
(b) A tribunal of the commonwealth may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state if:(1) the petition or comparable pleading in the other state is filed before the expiration of the time allowed in the commonwealth for filing a responsive pleading challenging the exercise of jurisdiction by the commonwealth;(2) the contesting party timely challenges the exercise of jurisdiction in the commonwealth; and(3) if relevant, the other state is the home state of the child.
Part 2. Proceedings Involving Two or More States Chapter 209D: Section 2-205. Continuing, exclusive jurisdiction (a) A tribunal of the commonwealth issuing a support order consistent with the law of the commonwealth has continuing, exclusive jurisdiction over a child support order:(1) as long as the commonwealth remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or(2) until all of the parties who are individuals have filed written consents with the tribunal of the commonwealth for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.
(b) A tribunal of the commonwealth issuing a child support order consistent with the law of the commonwealth may not exercise its continuing jurisdiction to modify the order if the order has been modified by a tribunal of another state pursuant to a law substantially similar to this chapter.
(c) If a child support order of the commonwealth is modified by a tribunal of another state pursuant to a law substantially similar to this chapter, a tribunal of the commonwealth loses its continuing, exclusive jurisdiction with regard to prospective enforcement of the order issued in the commonwealth, and may only:(1) enforce the order that was modified as to amounts accruing before the modification;(2) enforce nonmodifiable aspects of that order; and(3) provide other appropriate relief for violations of that order which occurred before the effective date of the modification.
(d) A tribunal of the commonwealth shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has issued a child support order pursuant to a law substantially similar to this chapter.
(e) A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.
(f) A tribunal of the commonwealth issuing a support order consistent with the law of the commonwealth has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. A tribunal of the commonwealth may not modify a spousal support order issued by a tribunal of another state having continuing, exclusive jurisdiction over that order under the law of that state.
Part 2. Proceedings Involving Two or More States Chapter 209D: Section 2-206. Enforcement and modification of support order by tribunal having continuing jurisdiction (a) A tribunal of the commonwealth may serve as an initiating tribunal to request a tribunal of another state to enforce or modify a support order issued in that state.
(b) A tribunal of the commonwealth having continuing, exclusive jurisdiction over a support order may act as a responding tribunal under this chapter to enforce or modify the order. If a party subject to the continuing, exclusive jurisdiction of the tribunal no longer resides in the issuing state, in subsequent proceedings the tribunal may apply Section 3-316 (Special Rules of Evidence and Procedure) to receive evidence from another state and Section 3-318 (Assistance with Discovery) to obtain discovery through a tribunal of another state.
(c) A tribunal of the commonwealth which lacks continuing, exclusive jurisdiction over a spousal support order may not serve as a responding tribunal to modify a spousal support order of another state.
Part 3. Rconcilation of Multiple Orders Chapter 209D: Section 2-207. Recognition of child support orders (a) If a proceeding is brought under this chapter and only one tribunal has issued a child support order, the order of that tribunal shall control and shall be so recognized.
(b) If a proceeding is brought under this chapter and two or more child support orders have been issued by tribunals of the commonwealth or another state or by tribunals of more than one jurisdiction with regard to the same obligor and child, a tribunal of the commonwealth shall apply the following rules in determining which order to recognize for purposes of continuing, exclusive jurisdiction:(1) if only one of the tribunals would have continuing, exclusive jurisdiction under this chapter, the order of such tribunal shall control and shall be so recognized.
(2) if more than one of the tribunals would have continuing, exclusive jurisdiction under this chapter, an order issued by a tribunal in the current home state of the child shall control and shall be so recognized; provided, however, that if an order has not been issued in the current home state of the child, the order most recently issued shall control and shall be so recognized.
(3) if none of the tribunals would have continuing, exclusive jurisdiction under this chapter, the tribunal of the commonwealth having jurisdiction over the parties shall issue a child support order which shall control and shall be so recognized.
(c) If two or more child support orders have been issued for the same obligor and child and if the obligor or the individual obligee resides in the commonwealth, a party may request a tribunal of the commonwealth to determine which order shall control and shall be so recognized under subsection (b). The request shall be accompanied by a certified copy of every support order in effect. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.
(d) The tribunal that issued the controlling order under subsection (a), (b) or (c) shall be the tribunal that has continuing, exclusive jurisdiction under section 2—205.
(e) A tribunal of the commonwealth which determines by order the identity of the controlling order under clause (1) or (2) of subsection (b) or which issues a new controlling order under clause (3) of said subsection (b) shall state in such order the basis upon which the tribunal made its determination.
(f) Within 30 days after issuance of an order determining the identity of the controlling order, the party obtaining the order shall file a certified copy of it with each tribunal that issued or registered an earlier order of child support. A party who obtains the order and fails to file a certified copy shall be subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file shall not affect the validity or enforceability of the controlling order.
(g) Any action pursuant to former chapter 273A that is pending or was previously adjudicated in the district court or the Boston municipal court department may be transferred to the probate and family court department by any party or by the IV-D agency as set forth in chapter 119A. An action shall be transferred upon the filing of the following documents with the probate and family court: (1) a copy of the petition, if any, and accompanying documents; (2) a copy of the order of the district court or Boston municipal court, if any; (3) a copy of the findings of the court, if any; (4) a copy of the financial statements submitted by the parties, if any; (5) a copy of the worksheet used to calculate the amount of the child support order pursuant to the child support guidelines, if any; and (6) a copy of the docket maintained by the district court or the Boston municipal court, if any. Once transferred, the order of the district court or the Boston municipal court shall have the same force and effect and shall be subject to the same procedures and defenses as an order of the probate and family court and may be enforced or modified in the same manner available to enforce or modify any judgment or order of the probate and family court. Upon transfer, the provisions of this chapter shall apply. Transfer of an order pursuant to this section shall not limit the use of any enforcement remedy, whether judicial or administrative, that may be available and the probate and family court shall preserve all arrears that have accrued pursuant to the order of the district or Boston municipal court departments.
Part 3. Rconcilation of Multiple Orders Chapter 209D: Section 2-208. Multiple child support orders for two or more obligees In responding to multiple registrations or petitions for enforcement of two or more child support orders in effect at the same time with regard to the same obligor and different individual obligees, at least one of which was issued by a tribunal of another state, a tribunal of the commonwealth shall enforce those orders in the same manner as if the multiple orders had been issued by a tribunal of the commonwealth.
Part 3. Rconcilation of Multiple Orders Chapter 209D: Section 2-209. Credit for payments Amounts collected and credited for a particular period pursuant to a support order issued by a tribunal of another state must be credited against the amounts accruing or accrued for the same period under a support order issued by the tribunal of the commonwealth.
Chapter 209D: Section 3-301. Proceedings under this chapter (a) Except as otherwise provided in this chapter, this article applies to all proceedings under this chapter.
(b) This chapter provides for the following proceedings:(1) establishment of an order for spousal support or child support pursuant to Article 4;(2) enforcement of a support order and income-withholding order of another state without registration pursuant to Article 5;(3) registration of an order for spousal support or child support of another state for enforcement pursuant to Article 6;(4) modification of an order for child support or spousal support issued by a tribunal of the commonwealth pursuant to Article 2, Part 2;(5) registration of an order for child support of another state for modification pursuant to Article 6;(6) determination of parentage pursuant to Article 7; and(7) assertion of jurisdiction over nonresidents pursuant to Article 2, Part 1.
(c) An individual petitioner or a support enforcement agency may commence a proceeding authorized under this chapter by filing a petition in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state which has or can obtain personal jurisdiction over the respondent.
Chapter 209D: Section 3-302. Action by minor parent A minor parent, or a guardian or other legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor’s child.
Chapter 209D: Section 3-303. Application of law of the commonwealth Except as otherwise provided by this chapter, a responding tribunal of the commonwealth:(1) shall apply the procedural and substantive law, including the rules on choice of law, generally applicable to similar proceedings originating in the commonwealth and may exercise all powers and provide all remedies available in those proceedings; and(2) shall determine the duty of support and the amount payable in accordance with the law and support guidelines of the commonwealth.
Chapter 209D: Section 3-304. Duties of initiating tribunal (a) Upon the filing of a petition authorized by this chapter, an initiating tribunal of the commonwealth shall forward three copies of the petition and its accompanying documents:(1) to the responding tribunal or appropriate support enforcement agency in the responding state; or(2) if the identity of the responding tribunal is unknown, to the state information agency of the responding state with a request that they be forwarded to the appropriate tribunal and that receipt be acknowledged.
(b) If a responding state has not enacted the Uniform Interstate Family Support Act or a law or procedure substantially similar to said act, a tribunal of the commonwealth may issue a certificate or other document and make findings required by the law of the responding state. If the responding state is a foreign jurisdiction, the tribunal may specify the amount of support sought and provide other documents necessary to satisfy the requirements of the responding state.
Chapter 209D: Section 3-305. Duties and powers of responding tribunal (a) When a responding tribunal of the commonwealth receives a petition or comparable pleading from an initiating tribunal or directly pursuant to Section 3-301(c) (Proceedings Under this Chapter), it shall cause the petition or pleading to be filed and notify the petitioner by first class mail or by facsimile or other electronic transmission where and when it was filed.
(b) A responding tribunal of the commonwealth, to the extent otherwise authorized by law, may do one or more of the following:(1) issue or enforce a support order, modify a child support order, or render a judgment to determine parentage;(2) order an obligor to comply with a support order, specifying the amount and the manner of compliance;(3) order income withholding;(4) determine the amount of any arrearages, and specify a method of payment;(5) enforce orders by civil or criminal contempt, or both;(6) set aside property for satisfaction of the support order;(7) place liens and order execution on the obligor’s property;(8) order an obligor to keep the tribunal informed of the obligor’s current residential address, telephone number, employer, address of employment, and telephone number at the place of employment;(9) issue a capias or a bench warrant for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the capias or the bench warrant in any local and state computer systems for criminal warrants;(10) order the obligor to seek appropriate employment by specified methods;(11) award reasonable attorney’s fees and other fees and costs; and(12) grant any other available remedy.
(c) A responding tribunal of the commonwealth shall include in a support order issued under this chapter, or in the documents accompanying the order, the calculations on which the support order is based.
(d) A responding tribunal of the commonwealth may not condition the payment of a support order issued under this chapter upon compliance by a party with provisions for visitation.
(e) If a responding tribunal of the commonwealth issues an order under this chapter, the tribunal shall send a copy of the order by first class mail or by facsimile or other electronic transmission to the petitioner and the respondent and to the initiating tribunal, if any.
Chapter 209D: Section 3-306. Inappropriate tribunal If a petition or comparable pleading is received by an inappropriate tribunal of the commonwealth, it shall forward the pleading and accompanying documents to an appropriate tribunal in the commonwealth or another state and notify the petitioner by first class mail, or by facsimile or other electronic transmission where and when the pleading was sent.
Chapter 209D: Section 3-307. Duties of support enforcement agency (a) A support enforcement agency of the commonwealth, upon request, shall provide services to a petitioner in a proceeding under this chapter.
(b) A support enforcement agency that is providing services to the petitioner as appropriate shall:(1) take all steps necessary to enable an appropriate tribunal in the commonwealth or another state to obtain jurisdiction over the respondent;(2) request an appropriate tribunal to set a date, time, and place for a hearing;(3) make a reasonable effort to obtain all relevant information, including information as to income and property of the parties;(4) within five days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of a written notice from an initiating, responding, or registering tribunal, send a copy of the notice by first class mail, or by facsimile or other electronic transmission to the petitioner;(5) within five days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of a written communication from the respondent or the respondent’s attorney, send a copy of the communication by first class mail, or by facsimile or other electronic transmission to the petitioner; and(6) notify the petitioner if jurisdiction over the respondent cannot be obtained.
(c) This chapter does not create or negate a relationship of attorney and client or other fiduciary relationship between a support enforcement agency or the attorney for the agency and the individual being assisted by an agency.
Chapter 209D: Section 3-308. Duty of attorney general If the Attorney General determines that the support enforcement agency is neglecting or refusing to provide services to an individual, the Attorney General may order the agency to perform its duties under this chapter or may provide those services directly to the individual.
Chapter 209D: Section 3-309. Private counsel An individual may employ private counsel to represent the individual in proceedings authorized by this chapter.
Chapter 209D: Section 3-310. Duties of state information agency (a) The commonwealth shall establish a state information agency under this chapter.
(b) The state information agency shall:(1) compile and maintain a current list, including addresses, of the tribunals in the commonwealth which have jurisdiction under this chapter and any support enforcement agencies in the commonwealth and transmit a copy to the state information agency of every other state;(2) maintain a register of tribunals and support enforcement agencies received from other states;(3) forward to the appropriate tribunal in the place in the commonwealth in which the individual obligee or the obligor resides, or in which the obligor’s property is believed to be located, all documents concerning a proceeding under this chapter received from an initiating tribunal or the state information agency of the initiating state; and(4) obtain information concerning the location of the obligor and the obligor’s property within the commonwealth not exempt from execution, by such means as postal verification and federal or state locator services, examination of telephone directories, requests for the obligor’s address from employers or other sources of periodic income, and examination of governmental records, including, to the extent not prohibited by other law, those relating to real property, vital statistics, law enforcement, taxation, motor vehicles, driver’s licenses, and social security.
Chapter 209D: Section 3-311. Pleadings and accompanying documents (a) A petitioner seeking to establish or modify a support order or to determine parentage in a proceeding under this chapter must verify the petition. Unless otherwise ordered under Section 3-312 (Nondisclosure of Information in Exceptional Circumstances), the petition or accompanying documents must provide, so far as known, the name, residential address, and social security numbers of the obligor and the obligee, and the name, sex, residential address, social security number, and date of birth of each child for whom support is sought. The petition must be accompanied by a certified copy of any support order in effect. The petition may include any other information that may assist in locating or identifying the respondent.
(b) The petition must specify the relief sought. The petition and accompanying documents must conform substantially with the requirements imposed by the forms mandated by federal law for use in cases filed by a support enforcement agency.
Chapter 209D: Section 3-312. Nondisclosure of information in exceptional circumstances Upon a finding, which may be made ex parte, that the health, safety, or liberty of a party or child would be unreasonably put at risk by the disclosure of identifying information, or if an existing order so provides, a tribunal shall order that the address of the child or party or other identifying information not be disclosed in a pleading or other document filed in a proceeding under this chapter.
Chapter 209D: Section 3-313. Costs and fees (a) The petitioner may not be required to pay a filing fee or other costs.
(b) If an obligee prevails, a responding tribunal may assess against an obligor filing fees, reasonable attorney’s fees, other costs, and necessary travel and other reasonable expenses incurred by the obligee and the obligee’s witnesses. The tribunal may not assess fees, costs, or expenses against the obligee or the support enforcement agency of either the initiating or the responding state, except as provided by other law. Attorney’s fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order in the attorney’s own name. Payment of support owed to the obligee has priority over fees, costs and expenses.
(c) The tribunal shall order the payment of costs and reasonable attorney’s fees if it determines that a hearing was requested primarily for delay. In a proceeding under Article 6 (Enforcement and Modification of Support Order After Registration), a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change.
Chapter 209D: Section 3-314. Limited immunity of petitioner (a) Participation by a petitioner in a proceeding before a responding tribunal, whether in person, by private attorney, or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.
(b) A petitioner is not amenable to service of civil process while physically present in the commonwealth to participate in a proceeding under this chapter.
(c) The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under this chapter committed by a party while present in the commonwealth to participate in the proceeding.
Chapter 209D: Section 3-315. Nonparentage as defense A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this chapter.
Chapter 209D: Section 3-316. Special rules of evidence and procedure (a) The physical presence of the petitioner in a responding tribunal of the commonwealth is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage.
(b) A verified petition, affidavit, document substantially complying with federally mandated forms, and a document incorporated by reference in any of them, not excluded under the hearsay rule if given in person, is admissible in evidence if given under oath by a party or witness residing in another state.
(c) A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it, and is admissible to show whether payments were made.
(d) Copies of bills for testing for parentage, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.
(e) Documentary evidence transmitted from another state to a tribunal of the commonwealth by telephone, telecopier, or other means that do not provide an original writing may not be excluded from evidence on an objection based on the means of transmission.
(f) In a proceeding under this chapter, a tribunal of the commonwealth may permit a party or witness residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means at a designated tribunal or other location in that state. A tribunal of the commonwealth shall cooperate with tribunals of other states in designating an appropriate location for the deposition or testimony.
(g) If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.
(h) A privilege against disclosure of communications between spouses does not apply in a proceeding under this chapter.
(i) The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this chapter.
Chapter 209D: Section 3-317. Communications between tribunals A tribunal of the commonwealth may communicate with a tribunal of another state in writing, or by telephone or other means, to obtain information concerning the laws of that state, the legal effect of a judgment, decree, or order of that tribunal, and the status of a proceeding in the other state. A tribunal of the commonwealth may furnish similar information by similar means to a tribunal of another state.
Chapter 209D: Section 3-318. Assistance with discovery A tribunal of the commonwealth may:(1) request a tribunal of another state to assist in obtaining discovery; and(2) upon request, compel a person over whom it has jurisdiction to respond to a discovery order issued by a tribunal of another state.
Chapter 209D: Section 3-319. Receipt and disbursement of payments A support enforcement agency or tribunal of the commonwealth shall disburse promptly any amounts received pursuant to a support order, as directed by the order. The agency or tribunal shall furnish to a requesting party or tribunal of another state a certified statement by the custodian of the record of the amounts and dates of all payments received.
Chapter 209D: Section 4-401. Petition to establish support order (a) If a support order entitled to recognition under this chapter has not been issued, a responding tribunal of the commonwealth may issue a support order if:(1) the individual seeking the order resides in another state; or(2) the support enforcement agency seeking the order is located in another state.
(b) The tribunal may issue a temporary child support order if:(1) the respondent has signed a verified statement acknowledging parentage;(2) the respondent has been determined by or pursuant to law to be the parent; or(3) there is other clear and convincing evidence that the respondent is the child’s parent.
(c) Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to Section 3-305 (Duties and Powers of Responding Tribunal).
Chapter 209D: Section 5-501. Recognition of income-withholding order of another state (a) An income withholding order issued in another state may be sent by first class mail or by facsimile or other electronic transmission to the person or entity defined as the obligor’s employer under section 1A of chapter 119A or to any other source of periodic income to the obligor, without first filing a petition or comparable pleading or registering the order with a tribunal of the commonwealth.
(b) An obligor may contest the validity or enforcement of an income-withholding order issued in another state in the same manner as if the order had been issued by a tribunal of the commonwealth. Section 6-604 (Choice of Law) applies to the contest. The obligor shall give notice of the contest to any child support enforcement agency providing services to the obligee and to:(1) the person or agency designated to receive payments in the income-withholding order; or(2) if no person or agency is designated, the obligee.
Chapter 209D: Section 5-502. Income withholding orders; employers; other sources of periodic income; duties (a) Upon receipt of an income withholding order, the obligor’s employer or other source of periodic income shall immediately provide a copy of the order to the obligor.
(b) The employer or other source of periodic income shall treat an income withholding order issued in another state which appears valid on its face as if it had been issued by a tribunal of the commonwealth.
(c) Except as otherwise provided in subsection (d) and section 5—503, the employer or other source of periodic income shall withhold and distribute the funds as directed in the withholding order by complying with terms of the order which specify:(1) the duration and amount of periodic payments of current child support, stated as a sum certain;(2) the person or agency designated to receive payments and the address to which such payments shall be forwarded;(3) medical support whether in the form of periodic cash payment, stated as a sum certain, or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor’s place of employment;(4) the amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal and the obligee’s attorney, stated as sums certain; and(5) the amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.
(d) An employer or other source of periodic income shall comply with the law of the state of the obligor’s principal place of employment for withholding from income with respect to:(1) the fee of the employer or other source of periodic income for processing an income withholding order;(2) the maximum amount permitted to be withheld from the obligor’s income; and(3) the times within which the employer or other source of periodic income shall implement the withholding order and forward the child support payment.
Chapter 209D: Section 5-503. One obligor, multiple withholding orders; priorities If an obligor’s employer or other source of periodic income receives multiple income withholding orders with respect to the earnings of the same obligor, the employer or other source of periodic income shall be deemed to have satisfied the terms of the multiple orders if the employer or other source of periodic income complies with the law of the state of the obligor’s principal place of employment to establish the priorities for withholding and allocating income withheld for multiple child support obligees.
Chapter 209D: Section 5-504. Withholding of child support pursuant to order issued in another state; civil liability An employer or other source of periodic income who complies with an income withholding order issued in another state in accordance with this chapter shall not be subject to civil liability to an individual or agency with regard to the withholding of child support by the employer or other source of periodic income from the obligor’s income.
Chapter 209D: Section 5-505. Income withholding orders from another state; willful failure to comply; penalties An employer or other source of periodic income who willfully fails to comply with an income withholding order issued by another state and received for enforcement shall be subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of the commonwealth.
Chapter 209D: Section 5-506. Contesting validity or enforcement of income withholding orders issued in another state (a) An obligor may contest the validity or enforcement of an income withholding order issued in another state and received directly by an employer or other source of periodic income in the commonwealth in the same manner as if such order had been issued by a tribunal of the commonwealth. The provisions of section 6—604 shall apply to such contest.
(b) The obligor shall give notice of the contest to:(1) any support enforcement agency providing services to the obligee;(2) each employer or other source of periodic income that has directly received an income withholding order; and(3) the person or agency designated to receive payments in the income withholding order or, if no such person or agency is designated, to the obligee.
Chapter 209D: Section 5-507. Support enforcement agency; support orders; income withholding orders (a) A party seeking to enforce a support order or an income-withholding order, or both, issued by a tribunal of another state may send the documents required for registering the order to a support enforcement agency of the commonwealth.
(b) Upon receipt of the documents, the support enforcement agency, without initially seeking to register the order, shall consider and, if appropriate, use any administrative procedure authorized by the law of the commonwealth to enforce a support order or an income-withholding order, or both. If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests the validity or administrative enforcement of the order, the support enforcement agency shall register the order pursuant to this chapter.
REGISTRATION Part 1. Registration and Enforcement of Support Order Chapter 209D: Section 6-601. Registration of order for enforcement A support order or an income-withholding order issued by a tribunal of another state may be registered in the commonwealth for enforcement.
REGISTRATION Part 1. Registration and Enforcement of Support Order Chapter 209D: Section 6-602. Procedure to register order for enforcement (a) A support order or income-withholding order of another state may be registered in the commonwealth by sending the following documents and information to the appropriate tribunal in the commonwealth:(1) a letter of transmittal to the tribunal requesting registration and enforcement;(2) two copies, including one certified copy, of all orders to be registered, including any modification of an order;(3) a sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrearage;(4) the name of the obligor and, if known:(i) the obligor’s address and social security number;(ii) the name and address of the obligor’s employer and any other source of income of the obligor; and(iii) a description and the location of property of the obligor in the commonwealth not exempt from execution; and(5) the name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.
(b) On receipt of a request for registration, the registering tribunal shall cause the order to be filed as a foreign judgment, together with one copy of the documents and information, regardless of their form.
(c) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of the commonwealth may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.
REGISTRATION Part 1. Registration and Enforcement of Support Order Chapter 209D: Section 6-603. Effect of registration for enforcement (a) A support order or income-withholding order issued in another state is registered when the order is filed in the registering tribunal of the commonwealth.
(b) A registered order issued in another state is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of the commonwealth.
(c) Except as otherwise provided in this article, a tribunal of the commonwealth shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.
REGISTRATION Part 1. Registration and Enforcement of Support Order Chapter 209D: Section 6-604. Choice of law (a) The law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order.
(b) In a proceeding for arrearages, the statute of limitation under the laws of the commonwealth or of the issuing state, whichever is longer, applies.
REGISTRATION Part 2. Contest of Validity or Enforcement Chapter 209D: Section 6-605. Notice of registration of order (a) When a support order or income-withholding order issued in another state is registered, the registering tribunal shall notify the nonregistering party. Notice must be given by first class, certified, or registered mail or by any means of personal service authorized by the law of the commonwealth. The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.
(b) The notice must inform the nonregistering party:(1) that a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of the commonwealth;(2) that a hearing to contest the validity or enforcement of the registered order must be requested within twenty days after the date of mailing or personal service of the notice;(3) that failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages and precludes further contest of that order with respect to any matter that could have been asserted; and(4) of the amount of any alleged arrearages.
(c) Upon registration of an income-withholding order for enforcement, the registering tribunal shall notify the obligor’s employer or other source of periodic income pursuant to section twelve of chapter one hundred and nineteen A.
REGISTRATION Part 2. Contest of Validity or Enforcement Chapter 209D: Section 6-606. Procedure to contest validity or enforcement of registered order (a) A nonregistering party seeking to contest the validity or enforcement of a registered order in the commonwealth shall request a hearing within twenty days after the date of mailing or personal service of notice of the registration. The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to Section 6-607 (Contest of Registration or Enforcement).
(b) If the nonregistering party fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.
(c) If a nonregistering party requests a hearing to contest the validity or enforcement of the registered order, the registering tribunal shall schedule the matter for hearing and give notice to the parties by first class mail or by facsimile or other electronic transmission of the date, time, and place of the hearing.
REGISTRATION Part 2. Contest of Validity or Enforcement Chapter 209D: Section 6-607. Contest of registration or enforcement (a) A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses:(1) the issuing tribunal lacked personal jurisdiction over the contesting party;(2) the order was obtained by fraud;(3) the order has been vacated, suspended, or modified by a later order;(4) the issuing tribunal has stayed the order pending appeal;(5) there is a defense under the law of the commonwealth to the remedy sought;(6) full or partial payment has been made; or(7) the statute of limitation under Section 6-604 (Choice of Law) precludes enforcement of some or all of the arrearages.
(b) If a party presents evidence establishing a full or partial defense under subsection (a), a tribunal may stay enforcement of the registered order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered order may be enforced by all remedies available under the law of the commonwealth.
(c) If the contesting party does not establish a defense under subsection (a) to the validity or enforcement of the order, the registering tribunal shall issue an order confirming the order.
REGISTRATION Part 2. Contest of Validity or Enforcement Chapter 209D: Section 6-608. Confirmed order Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.
REGISTRATION Part 3. Registration and Modification of Child Support Order Chapter 209D: Section 6-609. Procedure to register child support order of another state for modification A party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in the commonwealth in the same manner provided in Part 1 of this article if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or later. The pleading must specify the grounds for modification.
REGISTRATION Part 3. Registration and Modification of Child Support Order Chapter 209D: Section 6-610. Effect of registration for modification A tribunal of the commonwealth may enforce a child support order of another state registered for purposes of modification, in the same manner as if the order had been issued by a tribunal of the commonwealth, but the registered order may be modified only if the requirements of Section 6-611 (Modification of Order of Another State) have been met.
REGISTRATION Part 3. Registration and Modification of Child Support Order Chapter 209D: Section 6-611. Modification of child support order of another state (a) After a child support order issued in another state has been registered in the commonwealth, the responding tribunal of the commonwealth may modify that order only if section 6-613 does not apply and after notice and hearing it finds that:(1) the following requirements are met:(i) the child, the individual obligee, and the obligor do not reside in the issuing state;(ii) a petitioner who is a nonresident of the commonwealth seeks modification; and(iii) the respondent is subject to the personal jurisdiction of the tribunal of the commonwealth; or(2) the child, or a party who is an individual, is subject to the personal jurisdiction of the tribunal of the commonwealth and each of the parties who are individuals has filed a written consent in the issuing tribunal for a tribunal of the commonwealth to modify the support order and assume continuing, exclusive jurisdiction over such order; provided, however, that if the issuing state is a foreign jurisdiction that has not enacted a law or established procedures substantially similar to the procedures under this chapter, the consent otherwise required of an individual residing in the commonwealth shall not be required for the tribunal to assume jurisdiction to modify the child support order.
(b) Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of the commonwealth and the order may be enforced and satisfied in the same manner.
(c) A tribunal of the commonwealth may not modify any aspect of a child support order that may not be modified under the law of the issuing state. If two or more tribunals have issued child support orders for the same obligor and child, the order that controls and must be so recognized under section 2-207 establishes the aspects of the support order which are nonmodifiable.
(d) On issuance of an order modifying a child support order issued in another state, a tribunal of the commonwealth becomes the tribunal of continuing, exclusive jurisdiction.
(e) Within thirty days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal which had continuing, exclusive jurisdiction over the earlier order, and in each tribunal in which the party knows that earlier order has been registered.
REGISTRATION Part 3. Registration and Modification of Child Support Order Chapter 209D: Section 6-612. Recognition of order modified in another state A tribunal of the commonwealth shall recognize a modification of its earlier child support order by a tribunal of another state which assumed jurisdiction pursuant to a law substantially similar to this chapter and, upon request, except as otherwise provided in this chapter, shall:(1) enforce the order that was modified only as to amounts accruing before the modification;(2) enforce only nonmodifiable aspects of that order;(3) provide other appropriate relief only for violations of that order which occurred before the effective date of the modification; and(4) recognize the modifying order of the other state, upon registration, for the purpose of enforcement.
REGISTRATION Part 3. Registration and Modification of Child Support Order Chapter 209D: Section 6-613. Child support order; child resides out of state; jurisdiction (a) If all of the parties who are individuals reside in the commonwealth and the child does not reside in the issuing state, a tribunal of the commonwealth shall have jurisdiction to enforce and modify the issuing state’s child support order in a proceeding to register such order.
(b) A tribunal of the commonwealth exercising jurisdiction under this section shall apply the provisions of this article and articles 1 and 2, and the procedural and substantive law of the commonwealth to the proceeding for enforcement or modification. The provisions of articles 3, 4, 5, 7 and 8 shall not apply.
REGISTRATION Part 3. Registration and Modification of Child Support Order Chapter 209D: Section 6-614. Modified child support orders; filing certified copies with tribunals Within 30 days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order and in each tribunal in which the party knows the earlier order has been registered. A party who obtains the order and fails to file a certified copy shall be subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file shall not affect the validity or enforceability of the modified order of the new tribunal having continuing, exclusive jurisdiction.
Chapter 209D: Section 7-701. Proceeding to determine parentage (a) A tribunal of the commonwealth may serve as an initiating or responding tribunal in a proceeding brought under this chapter or a law substantially similar to this chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act to determine that the petitioner is a parent of a particular child or to determine that a respondent is a parent of that child.
(b) In a proceeding to determine parentage, a responding tribunal of the commonwealth shall apply the procedural and substantive law of the commonwealth and the rules of the commonwealth on choice of law.
Chapter 209D: Section 8-801. Grounds for rendition (a) For purposes of this article, “governor” includes an individual performing the functions of governor or the executive authority of a state covered by this chapter.
(b) The governor of the commonwealth may:(1) demand that the governor of another state surrender an individual found in the other state who is charged criminally in the commonwealth with having failed to provide for the support of an obligee; or(2) on the demand by the governor of another state, surrender an individual found in the commonwealth who is charged criminally in the other state with having failed to provide for the support of an obligee.
(c) A provision for extradition of individuals not inconsistent with this chapter applies to the demand even if the individual whose surrender is demanded was not in the demanding state when the crime was allegedly committed and has not fled therefrom.
Chapter 209D: Section 8-802. Conditions of rendition (a) Before making demand that the governor of another state surrender an individual charged criminally in the commonwealth with having failed to provide for the support of an obligee, the governor of the commonwealth may require a prosecutor of the commonwealth to demonstrate that at least sixty days previously the obligee had initiated proceedings for support pursuant to this chapter or that the proceeding would be of no avail.
(b) If, under this chapter or a law substantially similar to this chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act, the governor of another state makes a demand that the governor of the commonwealth surrender an individual charged criminally in that state with having failed to provide for the support of a child or other individual to whom a duty of support is owed, the governor may require a prosecutor to investigate the demand and report whether a proceeding for support has been initiated or would be effective. If it appears that a proceeding would be effective but has not been initiated, the governor may delay honoring the demand for a reasonable time to permit the initiation of a proceeding.
(c) If a proceeding for support has been initiated and the individual whose rendition is demanded prevails, the governor may decline to honor the demand. If the petitioner prevails and the person whose rendition is demanded is subject to a support order, the governor may decline to honor the demand if the individual is complying with the support order.
Chapter 209D: Section 9-901. Uniformity of application and construction This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
Chapter 209D: Section 9-902. Short title This chapter may be cited as the Uniform Interstate Family Support Act.
Chapter 210: Section 1. Nature of adoption; district or juvenile court Section 1. A person of full age may petition the probate court in the county where he resides for leave to adopt as his child another person younger than himself, unless such other person is his or her wife or husband, or brother, sister, uncle or aunt, of the whole or half blood. A minor may likewise petition, or join in the petition of his or her wife or husband, for the adoption of a natural child of one of the parties. If the petitioner has a husband or wife living, competent to join in the petition, such husband or wife shall join therein, and upon adoption the child shall in law be the child of both; provided, however, that the prayer of the petition may be granted although the spouse of the petitioner is not a party to the petition if the court finds: (i) the failure of the spouse to join in the petition or to consent to the adoption is excused by reason of prolonged unexplained absence, legal separation, incapacity or circumstances constituting an unreasonable withholding of consent; (ii) the husband and wife are not in the process of an ongoing divorce; and (iii) the granting of the petition is in the best interests of the child. If a person not an inhabitant of this commonwealth desires to adopt a child residing here, the petition may be made to the probate court in the county where the child resides.
The district or juvenile court may, if it appears necessary or convenient, exercise the powers authorized by this chapter, but only in respect to a pending proceeding before such district or juvenile court.
Chapter 210: Section 10. Second adoption; effect Section 10. If the child has been previously adopted, all the legal consequences of the former decree shall, upon a subsequent adoption, determine, except so far as any interest in property may have vested in the adopted child, and a decree to that effect shall be entered on the records of the court.
Chapter 210: Section 11. Appeals Section 11. The supreme judicial court may allow a parent, who, upon a petition for adoption, had no notice of the proceedings before the decree and had neither waived notice in accordance with section two nor been the subject of a decree dispensing with need for notice in accordance with section three, to appeal therefrom within one hundred and twenty days after actual notice thereof.
Chapter 210: Section 11A. Adoption services offered by certain persons or agencies; penalty Section 11A. Any person or entity other than a duly authorized agent or employee of the department of social services or a child care or placement agency licensed under the provisions of chapter twenty-eight A, who causes to be published in the commonwealth an advertisement or notice of children offered or wanted for adoption, or in any way offers to place, locate or dispose of children offered or wanted for adoption, or who holds himself out in any way as being able to place, locate or dispose of children for adoption shall be punished by a fine of not less than one hundred nor more than one thousand dollars. Any such person who shall accept payment in the form of money or other consideration in return for placing a child for adoption shall be punished by a fine of not less than five thousand and not more than thirty thousand dollars, or by imprisonment in jail or house of correction for not more than two and one-half years or in the state prison for not more than five years, or both.
Chapter 210: Section 12. Petitions Section 12. A petition for the change of name of a person may be heard by the probate court in the county where the petitioner resides. The change of name of a person shall be granted unless such change is inconsistent with public interests.
Chapter 210: Section 13. Notice and certificate; decree; entry; conditions precedent Section 13. The court shall, before decreeing a change of name, request a report from the commissioner of probation on the person filing the petition and, except for good cause shown, require public notice of the petition to be given and any person may be heard thereon, and, upon entry of a decree, the name as established thereby shall be the legal name of the petitioner, and the register may issue a certificate, under the seal of the court, of the name as so established.
No decree shall be entered, however, until there has been filed in the court a copy of the birth record of the person whose name is sought to be changed and, in case such person’s name has previously been changed by decree of court or at marriage pursuant to section one D of chapter forty-six, either a copy of the record of his birth amended to conform to the previous decree changing his name, a copy of such decree, or a copy of the record of marriage; provided, that the filing of any such copy may be dispensed with if the judge is satisfied that it cannot be obtained.
Chapter 210: Section 14. Annual return of changes Section 14. Each register of probate shall annually, in December, make a return to the commissioner of public health and the commissioner of probation of all changes of name made in his court.
Chapter 210: Section 2. Written consent of certain persons; form of consent; identification of father Section 2. A decree of adoption shall not be made, except as provided in this chapter, without the written consent of the child to be adopted, if above the age of twelve; of the child’s spouse, if any; of the lawful parents, who may be previous adoptive parents, or surviving parent; or of the mother only if the child was born out of wedlock and not previously adopted. A person whose consent is hereby required shall not be prevented from being the adoptive parent.
Such written consent shall be executed no sooner than the fourth calendar day after the date of birth of the child to be adopted. It shall be attested and subscribed before a notary public in the presence of two competent witnesses, one of whom shall be selected by said person. The agency or person receiving custody shall act as guardian of the child until such time as a court of competent jurisdiction appoints a guardian or grants a petition for adoption. Execution of such consent shall be carried out in a manner which shall preserve privacy and confidentiality. A copy of said consent shall be filed with the department of social services. A consent executed in accordance with the provisions of this section shall be final and irrevocable from date of execution.
The form of such consent shall be as follows:—I, as the (relationship) of (name of child), age , of the sex, born in (place of birth), on (date of birth), do hereby voluntarily and unconditionally surrender (child) to the care and custody of (agency or person receiving custody) for the purpose of adoption or such other disposition as may be made by a court of competent jurisdiction. I waive notice of any legal proceeding affecting the custody, guardianship, adoption or other disposition of (child).
I UNDERSTAND THAT THIS SURRENDER IS FINAL AND CANNOT BE REVOKED. /s/ (person giving consent)On this day of (insert year), before me personally came and appeared and in my presence duly executed the foregoing instrument, and (he, she) acknowledged to me that (he, she) executed the same as (his, her) free act and deed, fully cognizant of its irrevocability.
DateState of Notary Public County ofSigned by (name of person giving consent) as (his, her) freely executed consent in the presence of each of us, and of each other, who thereafter have hereunto signed our names as witnesses. /s/ Address /s/ Address Any surrender given outside of the commonwealth shall be valid for the purpose of this section if it was taken in accordance with laws of the state or the country where it was executed.
If an agency or person receiving a child born out of wedlock for purposes of a subsequent adoption receives from the child’s mother an executed consent form as prescribed by this chapter, and no person has acknowledged paternity of the child in accordance with chapter two hundred and nine C or has been adjudicated the father of the child by any court of competent jurisdiction, then the person or agency shall request that the mother voluntarily provide a sworn written statement, executed before a notary and in the presence of two competent witnesses, one of whom shall be selected by the mother, that identifies the child’s father and his current or last known address. Any such statement shall be used solely for the purpose of notifying the person named as the father of the status of the child.
Chapter 210: Section 2A. Decree of adoption; entry; conditions precedent Section 2A. No decree of adoption shall be entered for the adoption of a child below the age of fourteen until one of the following conditions has been met:—(A) The child sought to be adopted has been placed with the petitioners for adoption by the department of social services or by an agency authorized by said department for such purpose, or(B) The petitioner is a blood relative of the child sought to be adopted, or(C) The petitioner is a step-parent of the child sought to be adopted, or(D) The petitioner was nominated in the will of a deceased natural parent of the child as a guardian or an adoptive parent, or(E) The petition for adoption has been approved in writing by the department of social services or by an agency authorized by said department. Any petitioner aggrieved by the refusal of the department or of an agency to approve such petition after being requested to do so, may appeal such refusal to the probate court in which the petition for adoption is pending, which court shall make final determination as to the allowance or dismissal of the petition.
Chapter 210: Section 2B. Adoption decrees; mandatory language Section 2B. Every decree of adoption entered by the court shall include the words “This adoption is final and irrevocable.
” Chapter 210: Section 3. Dispensing with required consent in certain cases Section 3. (a) Whenever a petition for adoption is filed by a person having the care or custody of a child, the consent of the persons named in section 2, other than that of the child, shall not be required if:— (i) the person to be adopted is 18 years of age or older; or (ii) the court hearing the petition finds that the allowance of the petition is in the best interests of the child pursuant to paragraph (c).
(b) The department of social services or a licensed child care agency may commence a proceeding, independent of a petition for adoption, in the probate court in Suffolk county or in any other county in which the department or agency maintains an office, to dispense with the need for consent of any person named in section 2 to adoption of the child in the care or custody of the department or agency. Notice of such proceeding shall be given to such person in a manner prescribed by the court. The court shall appoint counsel to represent the child in the proceeding unless the petition is not contested by any party. The court shall issue a decree dispensing with the need for consent or notice of any petition for adoption, custody, guardianship or other disposition of the child named therein, if it finds that the best interests of the child as provided in paragraph (c) will be served by the decree. Pending a hearing on the merits of a petition filed under this paragraph, temporary custody may be awarded to the petitioner. The entry of such decree shall have the effect of terminating the rights of a person named therein to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child named therein. The department shall provide notice of the hearing on the merits to any foster parent, pre-adoptive parent or relative providing care for the child informing the foster parent, pre-adoptive parent or relative of his right to attend the hearing and be heard. The provisions of this paragraph shall not be construed to require that a foster parent, pre-adoptive parent or relative be made a party to the proceeding.
A petition brought pursuant to this paragraph may be filed and a decree entered notwithstanding the pendency of a petition brought under chapter 119 or chapter 201 regarding the same child. The chief justice for administration and management of the trial court may, pursuant to the provisions of section 9 of chapter 211B, assign a justice from any department of the trial court to sit as a justice in any other department or departments of the trial court and hear simultaneously a petition filed under this paragraph and any other pending case or cases involving custody or adoption of the same child. A temporary or permanent custody decree shall not be a requirement to the filing of such petition.
A juvenile court or a district court shall enter a decree dispensing with the need for consent of any person named in section 2 to the adoption of a child named in a petition filed pursuant to section 24 of chapter 119 in such court upon a finding that such child is in need of care and protection pursuant to section 26 of said chapter 119 and that the best interests of the child as defined in paragraph (c) will be served by such decree. The entry of such decree shall have the effect of terminating the rights of a person named therein to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child named therein. Facts may be set forth either in the care and protection petition filed pursuant to said section 24 of said chapter 119 or upon a motion made in the course of a care and protection proceeding, alleging that the allowance of the petition or motion is in the best interests of the child.
The department of social services shall file a petition or, in the alternative, a motion to amend a petition pending pursuant to section 26 of chapter 119 to dispense with parental consent to adoption, custody, guardianship or other disposition of the child under the following circumstances: (i) the child has been abandoned; (ii) the parent has been convicted by a court of competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter or of any assault constituting a felony which results in serious bodily injury to the child or to another child of the parent; or (iii) the child has been in foster care in the custody of the commonwealth for 15 of the immediately preceding 22 months. For the purposes of this paragraph, a child shall be considered to have entered foster care on the earlier of: (a) the date of the first judicial finding, pursuant to section 24 or section 26 of chapter 119, that the child has been subjected to abuse or neglect; or (b) the date that is 60 days after the date on which the child is removed from the home. For the purposes of this paragraph, “serious bodily injury” shall mean bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty.
The department shall concurrently identify, recruit, process and approve a qualified family for adoption.
The department need not file a motion or petition to dispense with parental consent to the adoption, custody, guardianship or other disposition of the child, or, where the child is the subject of a pending petition pursuant to section 26 of chapter 119, a motion to amend the petition to dispense with parental consent to the adoption, custody, guardianship or other disposition of the child, if the child is being cared for by a relative or the department has documented in the case plan a compelling reason for determining that such a petition would not be in the best interests of the child or that the family of the child has not been provided, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child’s home if reasonable efforts as set forth in section 29C of said chapter 119 are required to be made with respect to the child.
(c) In determining whether the best interests of the child will be served by granting a petition for adoption without requiring certain consent as permitted under paragraph (a), the court shall consider the ability, capacity, fitness and readiness of the child’s parents or other person named in section 2 to assume parental responsibility and shall also consider the ability, capacity, fitness and readiness of the petitioners under said paragraph (a) to assume such responsibilities. In making the determination, the health and safety of the child shall be of paramount, but not exclusive, concern.
In determining whether the best interests of the child will be served by issuing a decree dispensing with the need for consent as permitted under paragraph (b), the court shall consider the ability, capacity, fitness and readiness of the child’s parents or other person named in section 2 to assume parental responsibility, and shall also consider the plan proposed by the department or other agency initiating the petition. In making the determination, the health and safety of the child shall be of paramount, but not exclusive, concern.
In considering the fitness of the child’s parent or other person named in section 2, the court shall consider, without limitation, the following factors:(i) the child has been abandoned;(ii) the child or another member of the immediate family of the child has been abused or neglected as a result of the acts or omissions of one or both parents, the parents were offered or received services intended to correct the circumstances which led to the abuse or neglect and refused, or were unable to utilize such services on a regular and consistent basis so that a substantial danger of abuse or neglect continues to exist, or have utilized such services on a regular and consistent basis without effectuating a substantial and material or permanent change in the circumstances which led to the abuse or neglect;(iii) a court of competent jurisdiction has transferred custody of the child from the child’s parents to the department, the placement has lasted for at least six months and the parents have not maintained significant and meaningful contact with the child during the previous six months nor have they, on a regular and consistent basis, accepted or productively utilized services intended to correct the circumstances;(iv) the child is four years of age or older, a court of competent jurisdiction has transferred custody of the child from the child’s parents to the department and custody has remained with the department for at least 12 of the immediately preceding 15 months and the child cannot be returned to the custody of the parents at the end of such 15-month period; provided, however, that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis;(v) the child is younger than four years of age, a court of competent jurisdiction has transferred custody of the child from the child’s parents to the department and custody has remained with the department for at least 6 of the immediately preceding 12 months and the child cannot be returned to the custody of the parents at the end of such 12-month period; provided, however, that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis;(vi) the parent, without excuse, fails to provide proper care or custody for the child and there is a reasonable expectation that the parent will not be able to provide proper care or custody within a reasonable time considering the age of the child provided that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis;(vii) because of the lengthy absence of the parent or the parent’s inability to meet the needs of the child, the child has formed a strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of the child’s life, the forced removal of the child from the caretaker would likely cause serious psychological harm to the child and the parent lacks the capacity to meet the special needs of the child upon removal;(viii) a lack of effort by a parent or other person named in section 2 to remedy conditions which create a risk of harm due to abuse or neglect of the child;(ix) severe or repetitive conduct of a physically, emotionally or sexually abusive or neglectful nature toward the child or toward another child in the home;(x) the willful failure to visit the child where the child is not in the custody of the parent or other person named in section 2;(xi) the willful failure to support the child where the child is not in the custody of the parent or other person named in section 2. Failure to support shall mean that the parent or other person has failed to make a material contribution to the child’s care when the contribution has been requested by the department or ordered by the court;(xii) a condition which is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent or other person named in section 2 unlikely to provide minimally acceptable care of the child;(xiii) the conviction of a parent or other person named in section 2 of a felony that the court finds is of such a nature that the child will be deprived of a stable home for a period of years. Incarceration in and of itself shall not be grounds for termination of parental rights; or(xiv) whether or not there has been a prior pattern of parental neglect or misconduct or an assault constituting a felony which resulted in serious bodily injury to the child and a likelihood of future harm to the child based on such prior pattern or assault.
For the purposes of this section “abandoned” shall mean being left without any provision for support and without any person responsible to maintain care, custody and control because the whereabouts of the person responsible therefor is unknown and reasonable efforts to locate the person have been unsuccessful. A brief and temporary absence from the home without intent to abandon the child shall not constitute abandonment.
Hearings on petitions to dispense with consent to adoption that allege that a child has been abandoned shall be scheduled and heard on an expedited basis. Notwithstanding the foregoing, the following circumstances shall constitute grounds for dispensing with the need for consent to adoption, custody, guardianship or other disposition of the child: (i) the child has been abandoned; (ii) the parent has been convicted by a court of competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter or of an assault constituting a felony which resulted in serious bodily injury to the child or to another child of the parent. For the purposes of this section, “serious bodily injury” shall mean bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty.
(d) Nothing in this section shall be construed to prohibit the petitioner and a birth parent from entering into an agreement for post-termination contact or communication. The court issuing the termination decree under this section shall have jurisdiction to resolve matters concerning the agreement. Such agreement shall become null and void upon the entry of an adoption or guardianship decree.
Notwithstanding the existence of any agreement for post-termination or post-adoption contact or communication, the decree entered under this section shall be final.
Nothing in this section shall be construed to prohibit a birth parent who has entered into a post-termination agreement from entering into an agreement for post-adoption contact or communication pursuant to section 6C once an adoptive family has been identified.
Chapter 210: Section 3A. Repealed, 1972, 800, Sec. 3 Chapter 210: Section 3B. Registration of interest for pre-adoptive or adoptive placement; criminal record review Section 3B. When deciding whether to approve or reject a registration of interest for pre-adoptive or adoptive placement, the department shall conduct a review of any misdemeanor offense discovered through a criminal offender record information search conducted pursuant to section 172B of chapter 6 in order to assist the department in accurately evaluating whether the mere existence of the offense has a substantial effect on the applicant’s current or future ability to assume and carry out the responsibilities of an adoptive or pre-adoptive parent in such a manner that the rights of the child to sound health and normal physical, mental, spiritual and moral development are insured. The review shall include, but need not be limited to, a review of the following: the time that has elapsed between the date of the offense and the filing of the registration of interest, the seriousness and specific circumstances of the offense, the number and nature of other offenses, the age of the offender at the time of the offense, the findings and recommendations of the family resource worker assigned by the department to discuss the facts surrounding the misdemeanor with the applicant, the recommendations given to the family resource worker by personal or employment references chosen by the applicant or received otherwise, the current and future needs of the child to be placed or adopted and the probable effect that the misdemeanor would have on the applicant’s ability to fulfill those needs, any reports or recommendations received by the department from the applicant’s parole or probation officer should one have been assigned, a copy of the police report pertaining to the offense in question if obtainable within a reasonable period of time or discussions with a police officer familiar with the facts surrounding the offense and, unless inappropriate, discussions with the child to be placed regarding his current and past relationship with the applicant. Nothing in this section shall be construed to affect the discretion of the department to approve or reject the registration of interest for adoptive or pre-adoptive placement.
Chapter 210: Section 4. Notice Section 4. If the written consent required by section two is not submitted to the court with the petition, the court shall, except where the court under section three has determined that such consent and notice is not required, order notice by personal service upon the parties of an order of notice, in such form as shall be prescribed under section thirty of chapter two hundred and fifteen, or, if the parties are not found within this commonwealth, by publication of said order of notice once in each of three successive weeks in such newspaper as the court orders, the last publication to be seven days at least before the time appointed for the hearing, and the court may require additional notice and consent. But if such child is of unknown parentage and is a foundling, publication as herein set forth shall not be required; but notice of the petition shall be given to the department of social services.
Chapter 210: Section 4A. Fathers of children born out of wedlock; adoption rights Section 4A. Whenever the mother of a child born out of wedlock has surrendered the child in accordance with section two, or whenever the right of such mother to withhold consent for adoption has been terminated in accordance with section three, notice of such surrender or termination and a right to petition for adoption shall be afforded to any person who, prior to such surrender or termination, has filed a declaration seeking to assert the responsibilities of fatherhood, hereinafter called a parental responsibility claim, or has been adjudicated the father of the child, except when a decree has been issued pursuant to section three dispensing with the need of consent of said father. The paternal responsibility claim shall be filed with the department of social services, hereinafter called the department, on a form prescribed by the department. The department shall provide the person filing with evidence of the filing within five days and shall at the same time, send notice of the filing to such mother by registered mail at her address as stated on the paternal responsibility claim or to such other address as the department determines to be correct after making every reasonable effort to locate such mother. Such filing shall constitute an acknowledgment and admission of paternity.
Upon request of any person or agency receiving a child for the purpose of adoption, the department shall examine all paternal responsibility claims filed with it and shall within five days provide an affidavit to such person or agency stating whether or not there has been a paternal responsibility claim filed with respect to such child. If such a paternal responsibility claim has been filed, the department shall, notify the person claiming paternity by registered mail, at the address stated on said paternal responsibility claim, that the child is in the care of a licensed placement agency which is planning for the adoption of the child. A copy of the notice shall be sent to the person or agency requesting the affidavit. The person claiming paternity may within thirty days from the date of mailing of said notice by the department file a petition for adoption or custody of such child in the probate court of the county where the agency is located. If he fails to do so, he shall not be entitled to notice of any subsequent proceeding concerning custody, guardianship, or adoption of the child. The court shall consider the case as expeditiously as possible, and, without regard to other potential adoptive parents, shall allow the petition of the person claiming paternity if it finds that such adoption or custody is in the child’s best interest and if it finds that such person is the father of the child. The court on its own motion may order the production of any evidence to determine if the petitioner is the father of the child. Any such petition shall be subject to clause (E) of section two A. Any costs incurred for the temporary care of the child pending the hearing on the petition of the person claiming paternity shall be borne by said person.
No other petition for adoption shall be allowed without proof of compliance with this section.
Chapter 210: Section 5. Failure to object after notice; proceedings Section 5. If, after such notice, a person whose consent is required does not appear and object to the adoption, the court may act upon the petition without his consent, subject to his right of appeal, or it may appoint a guardian ad litem with power to give or withhold consent.
Chapter 210: Section 5A. Children under fourteen; adoption; regulations; removals Section 5A. Upon the filing of a petition for adoption of a child under the age of fourteen, notice shall be given to the department of social services which shall make appropriate inquiry to determine the condition and antecedents of the child for the purpose of ascertaining whether he is a proper subject for adoption and to determine whether the petitioners and their home are suitable for the proper rearing of the child. The department shall submit to the court not later than thirty days after receipt of such notice such written report as will give the court full knowledge as to the desirability of the proposed adoption. In any petition for adoption the department shall submit to the court verification that the adoptee is not registered with the federal register for missing children and the central register. If the report of the department is not submitted to the court within said thirty days, upon motion of the petitioner, seven days notice of which shall be given to the department by service in hand or by certified mail, return receipt requested, the court shall, if the court finds that the department has made substantial progress but has not completed the report due to circumstances beyond the department’s control, grant the department up to an additional thirty days in which to complete the report and if the court does not so find, the court shall appoint any charitable corporation organized under general or special laws of the commonwealth for the purpose of engaging in the care of children and principally so engaged to conduct such inquiry, and the report thereof shall have the same force and effect as a report of the department. The court may require such further investigation and report by the department as may be necessary. All reports submitted hereunder shall be filed separate and apart from the other papers in the case, and shall not at any time be open to inspection except by the parties and their attorneys, unless the court, for good cause shown, shall otherwise order. No decree shall be made upon such a petition until such report has been received, nor until the child shall have resided for not less than six months in the home of the petitioner; provided, that for good cause shown the court may, in its discretion, waive the requirement of residence. This section shall not apply in the case of a petition for adoption presented, sponsored or recommended by any charitable corporation organized under general or special laws of the commonwealth for the purpose of engaging in the care of children and principally so engaged; provided, however, that such petitions shall be accompanied by a written report from said charitable corporation, which report shall be of the same force and effect as a report of the department of social services; and further provided, that no decree shall be made upon such a petition in the case of a child who has resided for less than six months in the home of the petitioner, except that, for good cause shown, the court may, in its discretion, waive the requirement of residence. Whenever the requirement of residence in the home of the petitioner is waived under this section, the probate judge shall file a memorandum setting forth the facts upon which such waiver was based.
At any time after the report has been filed, the court after notice and hearing shall order the removal of the child from the proposed adoption home if, in the opinion of the court, such removal is in the best interests of the child. If such removal is ordered, the court shall appoint a guardian who shall be a relative of the child, a person designated by the department of social services or an agency licensed by the department to have custody of the child, with authority to provide for his future care.
The court may waive the provisions of this section in the case of a petition for the adoption of a child of one of the parties petitioning for said adoption.
Chapter 210: Section 5B. Adoptive custody; factors considered; request for religious designation Section 5B. In making orders for adoption, the judge shall consider the need of the child for loving and responsible parental care and all factors relevant to the physical, mental and moral health of the child.
If, at the time of surrender of the child for adoptive custody, the parent or parents of said child requested a religious designation for the child, the court may grant a petition for adoption of the child only to a person or persons of the religious designation so requested, unless a placement for adoptive custody based on such request would not have been in the best interests of the child. If a request for religious designation is not given effect, such reasons in support of such determination shall be made a part of the records of the proceedings.
Chapter 210: Section 5C. Inspection of pleadings, reports, etc.
; docket book Section 5C. All petitions for adoption, all reports submitted thereunder and all pleadings, papers or documents filed in connection therewith, docket entries in the permanent docket and record books shall not be available for inspection, unless a judge of probate of the county where such records are kept, for good cause shown, shall otherwise order. Such petitions, reports, pleadings, papers, documents and permanent docket and record books shall be segregated. A separate permanent docket book shall be provided for all such entries. This section shall apply to the index of the court of all such entries, a separate index of which shall be provided.
Chapter 210: Section 5D. Release of information concerning adoption Section 5D. (a) A placement agency, as defined in section nine of chapter twenty-eight A, holding records relating to an adopted person, the biological parents of an adopted person or the adoptive parents of an adopted person shall:(1) release to such adopted person, if he has reached the age of eighteen years, upon his written request, information about his biological parents which will not identify or tend to lead to the identification of the biological parents or their present or former locations.
(2) release to a biological parent of an adopted person, upon the biological parent’s written request, information about such adopted person which will not reveal or tend to reveal his identity after adoption or his present or former locations, and which will not tend to lead to his identity after adoption or present or former locations.
(3) release to an adoptive parent, if the adopted person is under the age of eighteen years, upon the adoptive parent’s written request, information about the adopted person and his biological parents which will not identify or tend to lead to the identification of the biological parents or their present or former locations.
Such information shall include such nonidentifying information which the agency holds concerning the medical, ethnic, socio-economic, and educational circumstances of the person. The agency, in its discretion, shall further release such nonidentifying information concerning the circumstances under which the adopted person became available for adoption as it deems to be in the best interest of the person so requesting.
(b) If a placement agency, as defined in section nine of chapter twenty-eight A, has received written permission from a biological parent of an adopted person to release the identity of the biological parent to the adopted person and the said agency has received written permission from the adopted person, or written permission from the adoptive parents if the adoptive person is under the age of twenty-one, to release the identity after adoption of the adopted person to the biological parent, then the agency shall release the identity of the adopted person to the biological parent and the identity of the biological parent to the adopted person; provided, however, that if the biological parent is surviving, that he or she has given written consent at least thirty days before the release of said identifying information. The term “biological parent”, as used in this subsection, shall mean a biological mother, or a father named on the birth certificate of the adopted person filed in court with the adoption papers, or a man who has signed, as father, an adoption surrender filed in court with the adoption papers.
(c) Information released to a person pursuant to paragraphs (a) and (b) shall be provided in writing if such person so requests.
(d) Such placement agency shall:(1) release to the biological parent of an adopted person, upon the biological parent’s written request, any personal data, as defined in section one of chapter sixty-six A, which it holds relating to the biological parent.
(2) release to an adoptive parent, upon his written request, any personal data, as defined in section one of chapter sixty-six A, which it holds relating to the adoptive parent.
(3) in making any disclosure of information pursuant to this paragraph, the agency shall remove personal identifiers relating to a third person. No agency shall rely on any exception contained in clause Twenty-sixth of section seven of chapter four to withhold personal data otherwise accessible under this paragraph.
(e) All other adoption records held by such placement agency shall be confidential and shall not be released.
Chapter 210: Section 5E. Department of social services adoption report Section 5E. The department of social services shall submit a report detailing the number and nature, as defined jointly by department and the University of Massachusetts center for adoption research and policy in Worcester, of adoptions processed by the department during each calendar quarter to be filed with said center on the first day of each calendar quarter.
Chapter 210: Section 6. Decree of court; force and effect; private hearings Section 6. If the court is satisfied of the identity and relations of the persons, and that the petitioner is of sufficient ability to bring up the child and provide suitable support and education for it, and that the child should be adopted, it shall make a decree, by which, except as regards succession to property, all rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between the child and the petitioner and his kindred, and such rights, duties and legal consequences shall, except as regards marriage, incest or cohabitation, terminate between the child so adopted and his natural parents and kindred or any previous adopting parent; but such decree shall not place the adopting parent or adopted child in any relation to any person, except each other, different from that before existing as regards marriage, or as regards rape, incest or other sexual crime committed by either or both. The court may also decree such change of name as the petitioner may request. If the person so adopted is of full age, he shall not be freed by such decree from the obligations imposed by section six of chapter one hundred and seventeen and section twenty of chapter two hundred and seventy-three.
In evaluating whether a petitioner is of sufficient ability to provide suitable support for the child, the court shall give consideration to assurances by the department of social services that it will provide an adoption subsidy for the child.
No decree shall be made under this section until there has been filed in the court a statement, signed and sworn to by the petitioner, or petitioners, setting forth the date of birth and place of residence of each adopting parent and such other facts relating to each such parent as would be required by section thirteen of chapter forty-six for the correction of the record of the birth of the person sought to be adopted, and also a copy of the birth record of such person; provided, that in case such person has been previously adopted, either a copy of the record of his birth amended to conform to the previous decree of adoption or a copy of such decree may be so filed; and, provided further, that the filing of any such copy may be dispensed with if the judge is satisfied that it cannot be obtained.
Every decree of adoption entered by the court shall include the words “This adoption is final and irrevocable.
”The probate judge may determine that the hearing on any adoption petition shall be held in chambers. He shall, on the request of any party to an adoption proceeding, hold the hearing thereon in chambers, except that if said petition is contested, the consent of the other party or parties shall be required. No person shall be allowed to be present at any such hearing unless his presence is necessary either as a party or as a witness, and the probate judge shall exclude the general public from the hearing.
Chapter 210: Section 6A. Certificates of adoption Section 6A. The court shall forthwith, following the making of a decree of adoption, issue to the petitioner, or petitioners, a certificate of adoption setting forth all the facts relating to the adopting parent, or parents, as appearing in the statement required to be filed by section six, the name of, and all other facts relating to, the person adopted, as appearing in any copy of birth record or decree of adoption filed as required by said section, the name of the court making such decree and the date thereof, and, if such decree authorizes a change in the name of the person adopted, his name as so changed; provided, that if such person has been born out of wedlock, the name, or names, of, and all other facts relating to, his natural parent, or parents, shall be omitted from such certificate.
Certificates under this section shall be made on forms furnished by the commissioner of public health, and shall provide for the indicating thereon by the adopting parent, or parents, as to whether or not a correction of the record of the birth of the person adopted is desired; and, in case such desire is so indicated, the court shall forthwith send a certified copy of such certificate to the clerk of the city or town where such person was born.
If either of the parents who have adopted a child so request, the register of probate shall issue a special certificate of adoption upon which the original or prior name of the child and the names of its natural parents shall not appear.
Chapter 210: Section 6B. Adoption nunc pro tunc Section 6B. In the event that either of the petitioning adopting parents to a petition for adoption, which has been filed with the probate court, should die prior to the entry of a decree of adoption, the probate court may enter a decree within three months following the date of death nunc pro tunc to the date of the filing of the adoption petition. Said decree shall have all of the effect of a decree of adoption as to both petitioners and the person adopted as provided for in section seven.
Chapter 210: Section 6C. Agreement for post-adoption contact or communication Section 6C. (a) Prior to the entry of an adoption decree, prospective adoptive parents and a birth parent may enter into an agreement for post-adoption contact or communication between or among a minor to be adopted, the prospective adoptive parents and the birth parents. Such agreement may be approved by the court issuing the termination decree under section 3; provided, however, that an agreement under this section shall be finally approved by the court issuing the adoption decree. Any breach, modification or invalidation of the agreement, or any part of it, shall not affect the validity of the adoption. The adoption shall be final.
(b) The court shall approve an agreement for post-adoption contact or communication if the court finds that such agreement:(i) is in the best interests of the child;(ii) contains terms that are fair and reasonable; and(iii) has been entered knowingly and voluntarily by all parties to the agreement. This requirement may be satisfied by an affidavit executed by all parties, either jointly or separately, that is filed with the court. The affidavit shall state that the agreement is entered into knowingly and voluntarily and is not the product of coercion or duress. The court may hear testimony from the parties to the agreement.
(c) To be approved by the court, an agreement for post-adoption contact or communication shall contain the following statements:(i) This agreement is entered into pursuant to the provisions of section 6C of chapter 210 of the General Laws.
(ii) Any breach, modification or invalidation of the agreement or any part of it shall not affect the validity of the adoption. The adoption shall be final.
(iii) The parties acknowledge that either the birth or adoptive parents who have entered into the agreement have the right to seek enforcement as set forth in section 6D of chapter 210 of the General Laws.
(iv) The parties have not relied on any representations other than those contained in this agreement.
The agreement shall be signed by the parties and acknowledged before a notary public as the free act and deed of the parties. If the child is above the age of 12, the agreement shall contain the written consent of the child. If the child is in the custody of the department of social services, the agreement shall contain the written approval of the department and the attorney for the child. If the child is in the custody of a licensed child care agency, the agreement shall contain the written approval of the agency.
(d) To be enforceable, an agreement for post-adoption contact or communication shall be: (i) in writing; (ii) approved by the court prior to the date for entry of the adoption decree; and (iii) incorporated but not merged into the adoption decree, and shall survive as an independent contract.
(e) An agreement under this section need not disclose the identity of the parties to be enforceable; but if an identity is not disclosed, the unidentified person shall designate an agent for the purpose of service of process.
(f) An agreement for post-adoption contact or communication shall cease to be enforceable on the date the adopted person turns 18 years of age.
Chapter 210: Section 6D. Enforcement of agreement Section 6D. A party to a court-approved agreement for post-adoption contact or communication may seek to enforce the agreement by commencing a civil action for specific performance. A court order for specific performance of the terms of a post-adoption contact agreement shall be the sole remedy for breach of an agreement.
In such proceedings, parties shall not be entitled to the appointment of counsel; provided, however, that the court may appoint a guardian ad litem to represent the interests of the child.
In an enforcement proceeding, the court may modify the terms of the agreement if the court finds that there has been a material and substantial change in circumstances and the modification is necessary in the best interests of the child. A court-imposed modification of a previously approved agreement may limit, restrict, condition or decrease contact between the birth parents and the child but in no event shall a court-imposed modification serve to expand, enlarge or increase the amount of contact between the birth parents and the child or place new obligations on adoptive parents.
If the court finds that an action brought under this section was wholly insubstantial, frivolous and not advanced in good faith in accordance with the provisions of section 6F of chapter 231, the court may award attorney’s fees to all prevailing parties.
Nothing in the agreement shall preclude a party seeking to enforce an agreement for post-adoption contact or communication from utilizing child welfare mediation or permanency mediation before, or in addition to, the commencement of a civil action for specific enforcement. All proceedings conducted under this section shall be closed to the public and confidential and papers shall be segregated in accordance with section 5D.
Chapter 210: Section 6E. Decisions of adoptive parent on behalf of child Section 6E. Nothing contained in sections 6C and 6D shall be construed to abrogate the right of an adoptive parent to make decisions on behalf of his child.
Chapter 210: Section 7. Succession to property; rights of adopted child Section 7. A person adopted in accordance with this chapter shall take the same share of that property which the adopting parent could dispose of by will as he would have taken if born to such parent in lawful wedlock, and he shall stand to the kindred of such adopting parent in the same position as if so born to him. If the person adopted dies intestate, his property shall be distributed according to chapters one hundred and ninety and one hundred and ninety-six among the persons who would have been his kindred if he had been born to his adopting parent in lawful wedlock. The apportionment and distribution shall be ascertained by the court. A person shall by adoption lose his right to inherit from his natural parents or kindred, except when one of the natural parents of a minor child has died and the surviving parent has remarried subsequent to such parent’s death, subsequent adoption of such child by the person with whom such remarriage is contracted shall not affect the rights of such child to inherit from or through the deceased parent or kindred thereof. The court may decree that the rights of succession to property under this section shall vest in the person adopted as of the date of the filing of the petition for adoption.
Chapter 210: Section 8. “Child”, “grandchild”, “issue”, etc.
, defined Section 8. The words “child”, “grandchild”, “issue”, “heir” or “heir-at-law”, or their respective equivalents, in a grant, trust settlement, entail, devise or bequest, shall include one who is adopted to the same extent as if born to the adopting parent or parents in lawful wedlock, whether the adoption was decreed before or after the date of execution or the effective date of any such grant, trust settlement, entail, devise or bequest, unless the contrary plainly appears by the terms of the instrument.
Chapter 210: Section 9. Succession to property; right of child adopted in foreign state Section 9. A person adopted in another state or country, in accordance with the laws thereof, shall upon proof of such fact be entitled in this commonwealth to the same rights of succession to property by grant, trust settlement, entail, devise, bequest, or by intestacy as he would have had if he had been adopted in the commonwealth.
 
round round


Usa-massachusetts Law Firm / Lawyers Services Provided in Usa-massachusetts :
Usa-massachusetts Divorce Laws, custody, Usa-massachusetts Corporate Lawyers, Agreement, provident fund, Registered marriage, Court marriage Lawyers, Special/ Foreign marriage, Incorporation of company, Rent, eviction, tenancy, Lease Lawyers, Usa-massachusetts Labour laws, Appeals, Supreme Court Lawyers, High Court Lawyers, Bail, medical, negligence, Insurance claims/ accidents Lawyer, Usa-massachusetts Citizenship/ immigration Lawyers, Copyright Laws, Consumer, district Lawyer, State, national, Dowry, Wills & Probate, Trust & Estates Lawyers, Intellectual Property Lawyer, Bankrupt Lawyers, Banking & Finance, Corporate, Private Business Law, Recovery, Joint Venture & Mergers, Consumer, Civil Right Law Usa-massachusetts, Medical Negligence, Medical Malpractice, legal notice, summons, Income Tax Lawyers, sales, Custom Law, Excise Law, octroi, cess Civil, Criminal Solicitor Usa-massachusetts, Registration of property, Title search, mutation relationship, Conveyance, Transfer of Property Law, Usa-massachusetts Property lawyer, deeds, drafts, power of attorney, Recovery, Taxation Laws in Usa-massachusetts
LEGAL SERVICES
Add Lawyer
Legal Enquiry
Find a Lawyer
Bare Acts / India Codes
Statutes / Code
LAWYER BY LOCATION
India Lawyer
United State Lawyer
UAE Lawyer
Canada Lawyer
Find More...
LAW PRACTICE AREA
Business Law
Employment & Labor Law
Govt. Agencis & Taxtion
Family Law
Real Estate Property Law
Immigration Law
ABOUT HELPLINELAW
About Us
Contact Us
Services
Site Map
Recommend to Friends
© copyright 2000-2013, Helplinelaw.com Terms of USE
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice in India abroad regarding their individual legal, civil criminal issues or consult one of the experts online.