Lawyers Weekly (April 27, 2020) This Week's Decisions:
Where a Probate & Family Court judge, having appointed permanent guardians over three minor children, declined to exercise jurisdiction over petitions to remove those guardians, the judge's decision should be affirmed, as the children and the guardians have lived for several years in California, so the judge did not have home state jurisdiction over the termination petitions.
"At issue is whether the Essex Division of the Probate and Family Court Department (probate court), having appointed permanent guardians over three minor children, had exclusive continuing 'home state' jurisdiction over the petitions to remove those guardians and, if not, whether the probate judge abused her discretion in declining to exercise jurisdiction in favor of California, where the children and the guardians have lived for several years. We conclude that the probate court did not have home State jurisdiction over the termination petition; nor did it have jurisdiction under any of the other provisions of G.c. 209, S2. We accordingly affirm the dismissal of the termination petitions without reaching the question whether the judge acted within her discretion when she declined jurisdiction on forum non conveniens grounds...
"On appeal, the father challenges the dismissal of the termination petition on two grounds. First, he contends that as the probate court entered the guardianship decree, it retained exclusive continuing home State jurisdiction over all matters thereafter pertaining to the guardianship, including its termination. In connection with this argument, he points to the continuing status of the guardianships, the filing of annual status reports in Massachusetts, and the fact that (Steven and Maria Fitzgerals) never registered the guardianship in California. Second, the father contends that the guardianship decree was void for lack of service. ...
"The father argues...that the court's jurisdiction should not be assessed as of the date of the filing of the termination petition, but rather as of the date of the original guardianship petition. ...
"Our law does not support this view. Instead, jurisdiction under the Mass Child Custody Jurisdiction Act (MCCJA) must exist at the time the court is being called on to act; it is not enough that home State Jurisdiction existed at some previous point in time. ...A Massachusetts court does not have continuing home State jurisdiction unless the requirements of MCCJA home State jurisdiction are satisfied at the time that modification of an existing custodial arrangement is sought. ......guardianships are no different in this regard from any other custody determination. For these reasons, we agree with the judge that home State jurisdiction under S2(a)(1) did not exist over the father's termination petition.
"Nor did the court have jurisdiction under the three remaining subsections of G.L.c. 209B, S2(a). ..."
Guardinaship of Minor Children (Lawyers Weekly No. 11-040-20) (15 pages) (Wolohojian, J.) Motions to dismiss petitions for removal of guardians were heard by Jennifer M.R. Ulwick, J., in Probate & Family Court. Robert E. Curtis Jr. for the father; Erin Whelan Pennock for the guardians; John P. Dennis for the children (Docket No. 19-P-296) (April 13, 2020).
