Monthly Archives: March 2013

Simplifying The Custody Process When One Parent Lives Out of State

Even under the best of circumstances, child custody and parents’ rights are fraught, complex issues.  If one parent lives in Massachusetts and one does not, it is even more stressful, and here’s why:

Under the Uniform Child Custody Jurisdiction Act (UCCJA) which is the current law in Massachusetts, the Commonwealth has jurisdiction over matters of child custody for a period of 6 months after the child has moved from Massachusetts to another state.  Every other state except Massachusetts operates under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

This legislative session, Senator Cynthia Creem is taking the lead and has filed Senate Bill 711 which proposes having the UCCJEA supersede the UCCJA. The proposal is currently in the Joint Committee on the Judiciary awaiting a hearing date.

Interestingly enough, The UCCJEA isn’t actually a child custody law.  It’s a set of guidelines designed to make interstate custody issues more uniform.  It doesn’t have any effect on whether a parent receives custody or visitation, nor does it affect any substantive rights of parents. The UCCJEA is merely an enforcement tool and a method for determining which state has jurisdiction over a custody proceeding.  The purpose of the UCCJEA is to create uniformity and predictability in the custody process involving one parent living in MA and the other parent living out of state.

Court jurisdiction plays an important role in custody and visitation for parents who live in different states. UCCJEA helps to determine which court has the right to hear the case and make rulings — thereby avoiding dueling custody hearings in two different states.  It ensures that a jurisdictionally-proper custody/visitation order will be recognized and enforced across state lines.

Here are the basics about the UCCJEA:

The UCCJEA emphasizes enforcement.  It’s true that one parent may have to travel to hearings and trials outside of their state of residence, as well as find a lawyer who can represent them in the appropriate court of law.  However, the proposal permits out-of-state parties to be deposed or to testify by telephone, audiovisual, or other electronic means, which can prove less costly to the parties.  With potential options such as telephone conferencing and Skype available, it is not necessarily the case that the parent and child are burdened with returning to court in the home state.

In addition, the proposal provides that the court may assess travel and other expenses associated with out-of-state litigation to one of the parties. It also means that parents who abduct their own children won’t be able to run to another state for a custody ruling that they like better than the existing one.  The new proposal remedies discrimination against lesbian, gay, bisexual, and transgender persons in instances where a spouse, partner or significant other relocates to another jurisdiction – one that holds a person’s sexual orientation or gender identity against them when making custody determinations.

There are four basic considerations for a court to have jurisdiction over an initial child custody or visitation order:

  1. Where is the home state? The home state is where a child has been for at least six months prior to the legal action. The UCCJEA gives priority to the child’s home state.
  2. Is there a significant connection? Does the child have significant ties to a state and does that state have substantial evidence concerning the child?
  3. Is there a more appropriate forum? At times both the home state and the significant connection state decline jurisdiction in favor of another state that is more convenient.
  4. Is there a vacuum jurisdiction available?  If no court meets the above three standards, another court may step in and rule on the initial custody proceeding.

The current proposal before the legislature tackles issues that the UCCJA does not address. The domestic violence bar raised concerns regarding situations where parents take children in order to escape domestic violence.  Those concerns were incorporated into the bill as the “domestic violence exception”.  Furthermore, there are additional protections for victims of domestic violence in this bill regarding police intervention and authority to order costs and fees to prevailing parties that do not currently exist. The parties may also mutually agree in writing that the court may no longer have continuing, exclusive jurisdiction in court approved agreements, which is not currently available to parties in family law proceedings.

The UCCJEA benefits both children and parents by simplifying the custody process.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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BBA Sets Sights on Gun Control

As predicted in Issue Spot, among the thousands of bills filed at the beginning of the legislative session in January were a slew of bills pertaining to gun laws.  Governor Patrick filed House Bill 47, An Act to strengthen and enhance firearms laws in the Commonwealth

Governor Patrick’s bill proposes to do a number of things including bringing Massachusetts into compliance with the National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007.  While not a complete summary of the proposed bill, the legislation as filed would increase penalties, create new crimes and reduce access to high-powered rounds of ammunition.  It also includes provisions to improve the tracking of weapons sales, limit the purchase of guns to one per month and prevent machine guns from being sold to anyone under 21. Governor Patrick’s bill contains other provisions, too, that aren’t necessarily directly connected to guns.  Those provisions include amendments to the “criminal enterprise” statute to target broader illegal activity and amendments to the state wiretap statute.

Representative David Linsky has also filed a wide-ranging bill, House Bill 3253, An Act to reduce gun violence and to protect the citizens of the Commonwealth.  Representative Linsky’s bill requires gun license applicants to disclose their mental health histories, prohibit assault weapons from being stored in homes, ban high-capacity ammunition magazines, and require gun owners to purchase liability insurance.

Both of these bills –and the other bills pertaining to weapons — have been assigned to the Joint Committee on Public Safety and Homeland Security.  Among the more than 40 other bills that have been filed are bills covering areas such as regulations of gun storage, loopholes in the current law and support for the right to bear arms.  Public hearings have not yet been scheduled. 

Since the flurry of activity surrounding the initial filing of bills, the Legislature has opted for a more deliberative approach to the issue.  Speaker Robert Deleo recently announced his eight person task force charged with reviewing current Massachusetts gun laws.  Made up of law enforcement and experts in education and mental health, the task force will be chaired by Northeastern University Associate Dean Jack McDevitt.  Speaker DeLeo has put no time frame on the work of the legislative gun task force.  Instead, he has said he hopes the group will have an opportunity to thoroughly debate the issue and then make recommendations. 

At the BBA, President J.D. Smeallie has put together a group to monitor legislation related to gun control at the State House. The group will review and monitor these bills as they move through the legislative process and decide what, if any, role the BBA should play.  Randy Gioia, Deputy Chief Council at the Committee for Public Counsel Services and former BBA Council member will chair the study group and members are now being recruited. 

The BBA study group will also be closely watching HB47. The initial meeting of the group will take place this month.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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A Glimpse Into the Judiciary Committee’s Agenda

As we mentioned in last week’s blog post, almost all of the BBA’s bills end up in the Judiciary Committee.  That’s because the Judiciary Committee historically considers all bills relating to crimes, sentencing, the judiciary, judicial salaries, parole, and other corrections issues.  The Judiciary Committee also gets a handful of proposals to change the Constitution each session.

This session, there are three new House appointees to the Judiciary Committee:  Representative Bruce Ayers, freshman Representative Claire Cronin, and Representative Jeffrey Roy.  The new senators on the Judiciary Committee include the Chairwoman Katherine Clark and Senator Will Brownsberger.  Of the seventeen members of the Judiciary Committee, nine are lawyers.  Other members of the committee include a small business owner, a community activist and a funeral director.

With 771 bills already assigned to the Judiciary Committee there will probably be between fourteen and sixteen public hearings during the two-year session that started in January.  To put this number in perspective, the committee with the next largest number of bills currently before it, the Joint Committee on Public Service, currently has 390 bills.  The Joint Committee on Public Health currently has 349.

One of the first public hearings the Judiciary Committee will schedule will pertain to matters relating to amending the Constitution.  The joint rules of the House and Senate mandate specific time frames for amending the constitution. Any such amendment filed by April 24, 2013 must receive the Judiciary Committee’s recommendation that same day…

Pending in the Judiciary Committee this session. . .

Public accommodations protections for transgender individuals – Building upon the success of last year’s transgender equality law there is a proposal before the Judiciary Committee that would grant transgender individuals access to sex segregated public facilities based on their own gender-identity. .

Changes to the wiretap statute- Both Judiciary Committee Chairs have co-sponsored the bill, but that does not mean this proposal won’t be without controversy or complication.  Changing the wiretap statute has long been a priority of the Attorney General’s Office and other law enforcement officials.  Those in support of the bill refer to it as an “update.”  Those that don’t necessarily endorse the bill see it as a “broad expansion.”  The list of crimes that will ultimately be included in the wiretap statute will constitute the crux of the debate.

Uniform Child Custody Jurisdiction Enforcement Act- This uniform law has been adopted in all 49 states and its purpose is to provide a remedy for conflicts that occur under the current Massachusetts child custody jurisdiction law.  Under the UCCJEA, once a state has exercised jurisdiction over custody, that state has exclusive jurisdiction over potential changes in the judgment or order — providing a parent, the child, or someone acting as a parent remains in the original state.

Not pending in the Judiciary Committee this session. . .

Gun control bills – While the House referred a gun control bill to the Judiciary Committee, the Senate referred the same bill to the Joint Committee on Public Safety and Homeland Security.  In the end, the House concurred with the Senate. So it looks like the bills dealing with changes to our gun laws will not be handled by the Judiciary Committee.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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A Quick Look At the Legislative Committee Structure

Like it or not, bills essentially live and die in committees.  For the uninitiated, the Massachusetts legislature’s committee system is composed of joint committees, standing committees and conference committees.  Each committee has a specific jurisdiction covering particular types of subject matter.  For example, bills relating to criminal justice issues typically go to the Joint Committee on the Judiciary, and those relating to the salaries and retirement of public employees are covered by the Joint Committee on Public Service. 

The process of a bill becoming law begins when a legislator files a proposal – often at the request of a constituent or a group like the BBA – with the respective clerk’s office.  It is a complicated process that includes some very basic steps: recording docket numbers in a book, assigning bill numbers, and printing the actual bill.  Eventually a bill finds its way to the relevant committee. 

The Massachusetts legislature has twenty-nine joint committees.  A joint committee has both a senate and house chair.  With the exception of the Joint Transportation Committee each joint committee has six senators and eleven representatives.  (The Joint Transportation Committee has seven senators and thirteen representatives.)

Each branch has separate standing committees limited to members from that branch.  For example, both the House and Senate each have their own committee on ways & means, post audit and oversight, and ethics and bonding. 

A conference committee comes into play only after the regular committee process has been completed.  This means that there has already been a public hearing but the House and Senate have passed different versions of the same bill.  Members from each branch are appointed to work on the conference committee.  The conference committee meets to hammer out an agreed upon or compromise version of the bill.  This compromise version must then return to both the House and Senate for final approval.

Almost all of the bills that the BBA works on in any given legislative session end up before the Joint Committee on the Judiciary.  This legislative session, the Judiciary Committee is chaired by veteran House Chair Eugene L. O’Flaherty and new Senate Chair Katherine Clark. 

Now two months into the current two-year legislative session, bills have been filed and committee assignments have been made.  The House and Senate Clerks have already referred approximately 4,500 bills to their respective committees.  Staff is now reviewing those bills and hearings will be scheduled soon. 

Stayed tuned! Next week’s post will provide a closer look at the Judiciary Committee.

 

 – Kathleen Joyce
Director of Government Relations
Boston Bar Association
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