Lawyers Weekly, "This Week's Decisions" (12/23/19)
Where a Probate & Family Court judge transferred sole legal and physical custody of a child from the mother to the father, that ruling should be reversed because the service of process on the mother did not conform to the requirements of due process.
"The parties, who were never married to each other, were living in Massachusetts when their child was born. It appears from the record that the parties are Brazilian nationals and that the mother was an undocumented alien at that time. In January 2011, a custody judgment entered (incorporating the parties' stipulation) granting the mother primary physical custody, and requiring her to obtain written permission from the father before traveling outside of the United States with the child. On October 27, 2011, the mother and the child moved to Brazil, allegedly with the father's oral permission. However, on March 5, 2012, the father filed a complaint for modificaiton in the Probate and Family Court seeking sole physical custody on the basis that the mother had removed the child to Brazil without the court's permission. The father had the complaint served at the mother's former address in Leominster, despite knowing that she had moved to Brazil. The mother never answered the father's complaint. On June 11, 2012, the father and his counsel appeared before a judge of the Probate and Family Court for a pretrial conference on the father's modification complaint. The mother was not present at the pretrial conference, and no attorney appeared on her behalf. In his pretrial memorandum, the father indicated that the mother currently lived in Brazeil and her 'last known address' was her former Leominster residence. The father alleged that the mother had removed the child from Massachusetts 'without notice' to him. The certificate of service accomplanying the father's pretrial memorandum indicated that it had been served 'upon the attorney of record for each (other) party in hand on June 1, 2012,' but no attorney had appeared on the mother's behalf.
"As noted, on June 27, 2012, the judge issued the modification judgment transferring sole physical and legal custody of the child to the father. ...
"On April 7, 2018, the mother returned to the United States with the child, having been granted humanitarian parole while she pursued an asylum claim. ...
"...We conclude that the 2012 modification judgment is void. Contrary to the judge's conclusion, the service of process did not conform to the requirements of due process of law. ...As the mother was not properly served and did not receive actual notice of the modification complaint before the judgment, that judgment is void. ..."
