v43b1-Morley

A Silver Lining in Domestic Turmoil: A Call for Massachusetts to Adopt the UCCJEA’s Emergency Jurisprudence Provision

Julie A. Morley

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Every year, numerous individuals are subjected to domestic violence at the hands of an abusive  spouse. A victim’s decision to leave his/her abusive partner is usually a difficult one, as the risk of a violent episode significantly escalates. When a victim does decide to leave an abusive spouse, one issue that arises is the harsh custody battle that will play out in courts over any children the relationship has produced. Typically, victims whose safety is in danger decide to flee with their children to a confidential out-of-state location to truly regain safety.
In situations like these, issues of jurisdiction are raised to decide which state may make child custody determinations. Currently, Massachusetts follows the Massachusetts Child Custody Jurisdiction Act (MCCJA) when deciding interstate child custody issues. The MCCJA resembles the Uniform Child Custody Jurisdiction Act (UCCJA), an outdated uniform child custody jurisdictional statute developed in 1968 by the National Conference of Commissioners. However, the MCCJA has many problems. Specifically, its emergency jurisdiction provision allows a Massachusetts court to take emergency jurisdiction in a child custody case in order to “protect the child from abuse or neglect.” While this provision does protect children from abuse, it is completely silent as to any protection for parents or siblings who may also be in danger. Currently, a bill is pending in the Massachusetts’ legislature which provides an adoption of a newer jurisdictional statute, the Uniform Child Custody Jurisdiction  and Enforcement Act (UCCJEA). The UCCJEA’s revised emergency jurisdiction provision allows a state to
exercise jurisdiction if it is necessary to “to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”
This Note argues that Massachusetts must adopt the UCCJEA’s emergency jurisdiction provision for several reasons. First, adoption is necessary in order to afford protection to victims of domestic violence. Since the UCCJEA expands the focus of abuse to include a parent of the child, the statute takes into consideration the dynamics of domestic violence and its detrimental effects on individuals and families. This Note specifically focuses on the danger victims face when having to reenter the state of their abuser in order to adjudicate a child custody hearing because the state they had fled to lacks the ability to hear an emergency order. Second, adoption of the UCCJEA’s emergency jurisdiction  provision will provide even greater protection to all the children of battling parents by expanding coverage to situations where siblings, who may not be at issue in the custody dispute, are being abused and protecting children from the physical and psychological effects of witnessing abuse. Finally, as Massachusetts remains one of four states who have yet to enact the UCCJEA, adoption of the UCCJEA will help provide national uniformity to child custody laws.
43 New Eng. L. Rev. 135