Massachusetts Guidelines for Judicial Practice Abuse Prevention Proceedings Guideline 12:08

General Laws c. 209B authorizes Massachusetts to enter emergency orders to protect the plaintiff and child(ren) from harm, notwithstanding the pendency of a custody proceeding in another state.

If there is a prior or pending action or an existing custody order from another state and that state continues to have jurisdiction under its own law(s), Massachusetts must defer to the jurisdiction of the other state unless that state relinquishes jurisdiction to Massachusetts. Even if a parent has fled from another jurisdiction to Massachusetts to avoid abuse, the state from which that parent fled will remain the child(ren)'s home state for six months.

If a petition for protection from abuse is properly filed in Massachusetts, however, and another state has prior custody jurisdiction, G.L. c. 209B, § 2(a)(3)(ii) allows a Massachusetts court to enter a custody or parenting time order on an emergency basis only. The issuance of a c. 209A order is a sufficient finding of an emergency to justify a temporary custody order. Any custody order is subject to the initial jurisdictional requirements of the Massachusetts Child Custody Jurisdiction Act (MCCJA), pursuant to G.L. c. 209B, and the continuing jurisdiction of Parental Kidnapping Protection Act (PKPA), pursuant to 28 U.S.C. § 1738A (1988).See Umina v. Malbica, 27 Mass. App. Ct. 351, 358 (1989); and, Delk v. Gonzalez, 421 Mass. 525, 529 (1995). For a further discussion about requirements of personal jurisdiction, see I.S.H. v. M.D.B., 83 Mass. App. Ct. 553 (2013).

If custody jurisdiction is contested, the judge should make specific findings relative to abuse and risk to the child(ren) that should be communicated to the court with primary custody jurisdiction, either through telephone communication or by providing a copy of the findings or both. While a telephone conference can be held without the parties being present, the conversation should be held on the record if practicable, or memorialized in some other way for the record. Only factual findings or procedural issues should be discussed. If returning the child(ren) would create an undue risk of harm, the court may request that the other state consider bifurcating the proceeding with the Massachusetts court conducting a hearing or investigation for the benefit and use of the court with primary custody jurisdiction.

Child support awards in c. 209A orders may not conflict with awards in existence from another state. If there is a child support amount ordered by an out of state entity, the Uniform Interstate Family Support Act (UIFSA) is applicable.See G.L. c. 209D.