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SJC-13494

CARE AND PROTECTION OF JAYLEN.1

Essex. January 5, 2024. – April 17, 2024.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

Parent and Child, Care and protection of minor, Custody. 

Jurisdiction, Care and protection of minor, Custody of 

child, Juvenile Court, Probate Court. Juvenile Court, 

Jurisdiction. Probate Court, Jurisdiction, Child born out 

of wedlock. Practice, Civil, Care and protection 

proceeding. Statute, Construction. Due Process of Law, 

Care and protection of minor, Child custody proceeding, 

Substantive rights. Constitutional Law, Parent and child.

Petition filed in the Essex County Division of the Juvenile 

Court Department on March 10, 2021.

A motion to dismiss was heard by Kerry A. Ahern, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Dawn M. Messer, Committee for Public Counsel Services, for 

the child.

Jennifer L. Kernan for Department of Children and Families.

Roberta Driscoll-Weiss, for the father, was present but did 

not argue.

1 A pseudonym.
2

WENDLANDT, J. This case lies at the intersection of two 

statutory schemes involving the Commonwealth's interest in the 

welfare of children and two departments of the Trial Court --

the Probate and Family Court and the Juvenile Court -- with 

overlapping jurisdiction. The first statutory scheme provides 

safeguards for the care and protection of children. See G. L. 

c. 119, §§ 24-26. If a Juvenile Court judge adjudicates a child 

in need of care and protection, the judge may award "permanent" 

custody to the child's parent "qualified to give care to the 

child." G. L. c. 119, § 26. Such an order of custody is 

subject to "review and redetermination" at the request of a 

party during the pendency of the care and protection proceeding

at six-month intervals. Id. In the present case, after custody 

was removed from the mother of the nonmarital child,2 a Juvenile 

Court judge awarded "permanent" custody to the father. The 

child filed a motion to dismiss and to close the care and 

protection case, contending that the Juvenile Court's custody 

order, without an order from a judge of the Probate and Family 

Court, was sufficient to award permanent custody to the father.

The Juvenile Court judge denied the child's motion in light of

2 The statute governing the rights and obligations of 

parents who are not married to each other at the time of the 

child's birth refers to the child as a "child born out of 

wedlock." G. L. c. 209C, § 1. We will refer to such children 

as nonmarital children.
3

the second relevant statutory scheme, which comprehensively 

addresses the rights and responsibilities of the parents of 

nonmarital children and provides that the mother of a nonmarital 

child "shall" have custody "[i]n the absence of an order or 

judgment of a [P]robate and [F]amily [C]ourt [judge] relative to 

custody." G. L. c. 209C, § 10 (b).

The current practice in the Juvenile Court to resolve these 

seemingly imbricating schemes is to require the parent, who has

been awarded permanent custody of the child in connection with a 

care and protection action, to seek an order of custody from the 

Probate and Family Court under the nonmarital child statutory 

scheme, G. L. c. 209C; the Juvenile Court judge will dismiss the 

care and protection proceeding only after a Probate and Family 

Court judge has issued an order regarding custody of the 

nonmarital child. We agree that this practice best reflects the 

Legislature's intent and harmonizes the two statutory schemes. 

Further concluding that, in the circumstances presented here,

the practice complies with due process, we affirm the Juvenile 

Court judge's order denying the child's motion to dismiss the 

care and protection case in the present matter.

1. Background. The relevant facts are undisputed. In 

March 2021, following removal of the child from the mother, the 

Department of Children and Families (department) filed a care 

and protection petition in the Juvenile Court on behalf of the 
4

child pursuant to G. L. c. 119, § 24 (§ 24), alleging neglect by 

the mother. At that time, the mother, who never was married to 

the father, was the custodial parent of the child. The father

established paternity when the child was born and was listed as 

the father on the child's birth certificate.3 The father did 

not, however, seek custody of the child prior to the filing of 

the care and protection petition.4

Also in March 2021, the mother waived her right to a

temporary custody hearing; a Juvenile Court judge approved the 

parents' written stipulation and granted temporary custody to 

the father, with conditions. The father has maintained custody 

of the child since then.

3 See G. L. c. 209C, § 2 ("Paternity may be established by 

filing with the court, the clerk of the city or town where the 

child was born or the registrar of vital records and statistics 

an acknowledgment of parentage executed by both parents pursuant 

to [§] 11 . . ."); G. L. c. 209C, § 11 (a) ("A written voluntary 

acknowledgment of parentage executed jointly by the putative 

father . . . and the mother of the child . . . and filed with 

the registrar of vital records and statistics or with the court 

shall be recognized as a sufficient basis for seeking an order 

of support, visitation or custody with respect to the child 

without further proceedings to establish paternity, and no 

judicial proceeding shall be required or permitted to ratify an 

acknowledgment that has not been challenged pursuant to this 

section").

4 See G. L. c. 209C, § 10 (setting forth mechanism for 

parents of nonmarital children to obtain custody in Probate and 

Family Court); G. L. c. 209C, § 11 (b) (parents may, through 

agreement, determine custody of nonmarital children "provided[] 

that any such agreement . . . must be filed with a division of 

the [P]robate and [F]amily [C]ourt [D]epartment").
5

A different Juvenile Court judge (second judge) 

subsequently issued an order requesting that the Probate and 

Family Court resolve the issue of the child's custody and 

further ordered the father to file a complaint in the Probate 

and Family Court, which he did in August 2022. The father later

filed a motion for temporary orders regarding the child's 

custody in the Probate and Family Court matter.5

In January 2023, the mother waived her right to a hearing 

on the merits of the care and protection proceedings; instead, 

she stipulated that she was unfit, that the child be adjudicated 

in need of care and protection, and that the father maintain 

permanent physical and legal custody of the child. The 

department, the father, and the child agreed. Following a 

colloquy with the mother, the second judge found the mother 

currently unfit and awarded permanent physical and legal custody 

to the father under G. L. c. 119, § 26 (§ 26), with the 

condition that, inter alia, the father abide by the parenting 

5 In October 2023, the underlying care and protection case 

was dismissed because a judge of the Probate and Family Court 

had granted the father temporary custody of the child. The 

father subsequently filed a request that we nonetheless decide 

the legal issues presented by the appeal despite it being moot. 

We agreed and allowed the father's motion. See Commonwealth v. 

Feliz, 486 Mass. 510, 513 (2020) ("we have discretion to review 

a case notwithstanding its mootness where the issue is of public 

importance and is capable of repetition yet evading review").
6

plan agreement executed by the parties.6 Per § 26 (c), the order 

of the second judge was subject to review and redetermination at 

six-month intervals.7

In March 2023, the child filed a motion for permanent 

custody to be awarded to the father and for dismissal of the 

care and protection case. By then, the father had maintained

custody of the child for over two years.

The second judge agreed with the undisputed position of the

parties that the father presented no protective concerns, and 

that the father should be granted permanent legal and physical 

custody of the child. Nevertheless, the judge denied the 

child's motion, reasoning that an order from a Probate and 

Family Court judge was required in order for the father to 

retain permanent legal and physical custody of the child,

despite the order she had issued pursuant to § 26, awarding 

"permanent" custody to the father as part of the care and 

6 The parenting plan agreement, which included a schedule 

for the mother's parenting time, was signed by the mother and 

the father in January 2023; it was adopted by the second judge.

7 As discussed infra, "permanent" custody is thus not 

permanent in the colloquial sense. See Care & Protection of

Thomasina, 75 Mass. App. Ct. 563, 570 (2009) (pursuant to § 26, 

order of "permanent" custody can be revisited during pendency of 

care and protection proceeding).
7

protection proceedings.8 The child timely appealed, and we 

allowed his application for direct appellate review.9

2. Discussion. a. Standard of review. This case 

presents a legal question as to the authority of a Juvenile 

Court judge under G. L. c. 119, § 26, regarding child custody 

matters, in light of the jurisdictional provisions of G. L. 

c. 209C, regarding custody of nonmarital children. Accordingly,

our review is de novo. See Robinhood Fin. LLC v. Secretary of 

the Commonwealth, 492 Mass. 696, 707 (2023) (questions of pure 

law reviewed de novo). See also Bank of N.Y. Mellon v. King, 

485 Mass. 37, 41 (2020) (where "[t]he interpretive question[s]

. . . [are] purely legal," we review them "de novo because [t]he 

duty of statutory interpretation rests ultimately with the 

courts" [citation omitted]). 

The starting point of our analysis is the language of the 

relevant statutes, which constitutes "the principal source of 

insight into Legislative purpose." City Elec. Supply Co. v.

Arch Ins. Co., 481 Mass. 784, 788 (2019), quoting Simon v. State 

Examiners of Electricians, 395 Mass. 238, 242 (1985). "Clear 

8 Concluding, as did the second judge, that dismissal of the 

care and protection proceeding would in effect vacate the order 

of permanent custody, the father did not join the child's motion 

to dismiss.

9 The father filed a late notice of appeal and joined the 

arguments made by the child.
8

and unambiguous statutory language is 'conclusive as to 

legislative intent.'" HSBC Bank USA, N.A. v. Morris, 490 Mass. 

322, 332 (2022) (Morris), quoting Patel v. 7-Eleven, Inc., 489 

Mass. 356, 362 (2022). However, "[w]here the statutory language 

is not conclusive, we may turn to extrinsic sources, including 

the legislative history and other statutes, for assistance in 

our interpretation" (quotation and citation omitted). Morris, 

supra at 332-333.

We strive to construe a statute "in harmony with prior 

enactments to give rise to a consistent body of law" wherever 

possible, assuming as we must that the "Legislature was aware of 

the existing statutes" (citation omitted). Charland v. Muzi 

Motors, Inc., 417 Mass. 580, 583 (1994). See School Comm. of 

Newton v Newton Sch. Custodians Ass'n, Local 454, SEIU, 438 

Mass. 739, 751 (2003) ("In the absence of explicit legislative 

commands to the contrary, we construe statutes to harmonize and 

not to undercut each other"). Thus, "where two or more statutes 

relate to the same subject matter, they should be construed 

together so as to constitute a harmonious whole consistent with 

the legislative purpose." FMR Corp. v. Commissioner of Revenue, 

441 Mass. 810, 819 (2004), quoting Board of Educ. v. Assessor of 

Worcester, 368 Mass. 511, 513-514 (1975).

b. Statutory framework. We begin with a review of the 

statutory framework for care and protection proceedings, G. L. 
9

c. 119, §§ 24-26, as well as the Legislature's comprehensive 

scheme regarding the rights of nonmarital children, G. L. 

c. 209C.

i. Care and protection proceedings. Where a child "is not 

receiving adequate care and protection, the department may file 

a petition . . . to summons the child's parent 'to show cause 

why the child should not be committed to the custody of the 

department or why any other appropriate order should not be 

made.'"10 Care & Protection of Zeb, 489 Mass. 783, 785 (2022), 

quoting G. L. c. 119, § 24.11 The Juvenile Court has 

jurisdiction over such petitions.12 See G. L. c. 218, § 59 

(setting forth Juvenile Court's jurisdiction over cases arising 

under G. L. c. 119).

If the child is adjudicated in need of care and protection, 

the judge may order the child committed to the department's 

10 When granting custody to the department, the judge

generally must "certify that the continuation of the child in 

his home is contrary to his best interests and shall determine 

whether the department . . . has made reasonable efforts . . .

to prevent or eliminate the need for removal from the home." 

G. L. c. 119, § 29C.

11 General Laws c. 119, §§ 24-26, were enacted in 1954. See

St. 1954, c. 646, § 1.

12 In care and protection proceedings, parents are entitled 

to the appointment of an attorney at the State's expense. G. L. 

c. 119, § 29.
10

custody.13 G. L. c. 119, § 26 (b). The judge also may "make any 

other appropriate order . . . about the care and custody of the 

child as may be in the child's best interest." Id. Relevant to 

the present action, the judge may "transfer temporary or 

permanent legal custody" of the child "to . . . any person, 

including the child's parent," who is "qualified to give care to 

the child." G. L. c. 119, § 26 (b) (2) (i). Absent 

"extraordinary circumstances that require continued intervention 

by the court, the [judge] shall enter a final order of 

adjudication and permanent disposition," no later than fifteen

months after the care and protection petition was filed in the 

Juvenile Court.14 G. L. c. 119, § 26 (c).

ii. Nonmarital children. The comprehensive statutory 

scheme regarding nonmarital children governs three essential 

13 If the department meets its burden to prove parental 

unfitness by clear and convincing evidence, the Juvenile Court 

judge may "adjudge that the child is in need of care and 

protection." G. L. c. 119, § 26 (b). See Care & Protection of 

Stephen, 401 Mass. 144, 150-151 (1987) (department bears burden 

of proving, by clear and convincing evidence, that parent is 

unfit and that child remains in need of care and protection).

14 The fifteen-month period is extendable by three 

additional months if the "[judge] makes a written finding that 

the parent has made consistent and goal-oriented progress likely 

to lead to the child's return to the parent's care and custody." 

G. L. c. 119, § 26 (c). But jurisdiction over the care and 

protection petition is not lost by a failure to enter a final 

order and the findings in support thereof within the prescribed 

time limits. Id.
11

functions: paternity determinations, provision of child 

support, and custody and visitation matters. See G. L. c. 209C, 

§ 1 (establishing "a means for such children either to be 

acknowledged by their parents voluntarily or, on complaint 

. . . , to have an acknowledgment or adjudication of their 

paternity, to have an order for their support and to have a 

declaration relative to their custody or visitation rights 

ordered by a court of competent jurisdiction").

Regarding the first two functions -- paternity and child 

support -- G. L. c. 209C provides for concurrent jurisdiction by 

the District Court, the Boston Municipal Court (BMC), and the 

Probate and Family Court. G. L. c. 209C, § 3 (a).15 Also with 

regard only to paternity and child support, the statute provides 

for concurrent jurisdiction by the Juvenile Court in limited 

circumstances and for limited duration. Specifically, a 

Juvenile Court judge, in connection with a care and protection 

proceeding brought under § 24, may issue orders regarding 

paternity and child support provided that the § 24 proceeding 

commenced prior to the G. L. c. 209C proceeding and that the two 

15 Actions brought in the District Court or the BMC may be 

transferred by any party to the Probate and Family Court, and 

pretransfer orders of the District Court or the BMC concerning 

paternity or support shall remain enforceable as an order of the 

Probate and Family Court. G. L. c. 209C, § 3 (d).
12

proceedings are joined or consolidated. G. L. c. 209C, 

§ 3 (c).16

With regard to custody,17 G. L. c. 209C states that the 

District Court and the BMC "shall have no jurisdiction" to 

determine custody of nonmarital children.18 G. L. c. 209C, 

§ 3 (a). And, while the Legislature clearly was aware of and 

considered the pendency of a § 24 proceeding affecting a 

nonmarital child, including presumably the power of the Juvenile 

Court judge to award "permanent" custody of a nonmarital child 

16 Child support orders by a Juvenile Court judge are of 

limited duration. See G. L. c. 209C, § 3 (e) (order for support 

entered by Juvenile Court judge enforceable "during the 

pendency" of care and protection proceeding, but will expire six 

months after dismissal of proceeding unless refiled beforehand 

in District Court, BMC, or Probate and Family Court).

17 In actions involving custody or visitation, the "court 

may appoint counsel to represent either party whenever the 

interests of justice require." G. L. c. 209C, § 7.

18 Indeed, where a complaint to establish paternity or 

support is filed in the District Court or the BMC and the 

complaint also includes a request relative to custody or 

visitation, it "shall be filed only in the [P]robate and 

[F]amily [C]ourt [D]epartment" (emphasis added). G. L. c. 209C, 

§ 3 (a). Similarly, where an action for paternity or support is 

pending or was previously adjudicated by the District Court or 

the BMC, and a party thereto seeks an order relative to custody 

or visitation, the party is instructed to file an action in the 

Probate and Family Court Department to determine custody or 

visitation. See G. L. c. 209C, § 3 (b). Such a filing will 

have the effect of transferring the original action from the 

District Court or the BMC to the Probate and Family Court, and 

"the case shall thereafter be heard only in the [P]robate and 

[F]amily [C]ourt [D]epartment" (emphasis added). Id.
13

to a parent "qualified to give care to the child," G. L. c. 119, 

§ 26, the statutory scheme provides that, "[i]n the absence of 

an order or judgment of [the] [P]robate and [F]amily [C]ourt 

relative to custody, the mother shall continue to have custody 

of a child after an adjudication of paternity or voluntary 

acknowledgment of parentage" (emphasis added).19 G. L. c. 209C, 

§ 10 (b). In addition, the statute directs that where a parent 

is unfit and "the other parent is fit to have custody, that 

parent shall be entitled to custody."20 G. L. c. 209C, § 10 (c).

c. Analysis. i. Statutory interpretation. The child 

maintains that the second judge's order awarding "permanent"

custody of the child to the father under § 26 sufficed to effect 

a permanent custodial change from the mother to the father. The 

child relies on G. L. c. 119, § 26 (b), which permits a Juvenile 

19 The statute sets forth detailed guidelines for a Probate 

and Family Court judge to consider when determining custody of 

the nonmarital child. See G. L. c. 209C, § 10 (a) (discussing 

goal to preserve relationship between child and primary 

caretaker parent if possible, and consideration to be given to 

child's residence during six months prior to proceedings, 

whether parent has established parent-child relationship or has 

exercised parental responsibilities, whether parents agree to 

joint custody, and whether parents can communicate and plan with 

each other in child's best interest); G. L. c. 209C, § 10 (e) 

(setting additional criteria to be considered when awarding 

custody and determining visitation).

20 Section 10 also provides that "[n]othing in this section 

shall be construed . . . to affect the discretion of the 

[P]robate and [F]amily [C]ourt in the conduct of [a custody] 

hearing" (emphasis added). G. L. c. 209C, § 10 (e).
14

Court judge to make "any other appropriate order . . . about the 

care and custody of the child as may be in the child's best 

interest." He also relies on G. L. c. 119, § 26 (c), which 

permits a Juvenile Court judge to enter a "final order of 

adjudication and permanent disposition" when "intervention by 

the court" is no longer needed. Together, the child contends,

these provisions evince the legislative intent to permit a 

Juvenile Court judge to enter a permanent change in custody over 

nonmarital children.

As is evident from our review of the statutory schemes, the 

child's proposed construction of § 26 would render meaningless

the provision of G. L. c. 209C directing that the mother of a 

nonmarital child "shall" have custody "[i]n the absence of an 

order or judgment of a [P]robate and [F]amily [C]ourt [judge] 

relative to custody." G. L. c. 209C, § 10 (b).21 Given this 

legislative directive that custody of a nonmarital child "shall" 

be with the mother absent an order of the Probate and Family 

Court, and the Legislature's express consideration of the 

jurisdiction of the Juvenile Court over care and protection 

21 See G. L. c. 209C, § 3 (a) (District Court and BMC "shall 

have no jurisdiction of custody" under G. L. c. 209C); G. L. 

c. 215, § 4 (Probate and Family Court Department "shall have 

exclusive original jurisdiction of actions . . . relative to 

paternity, support, and custody of minor children provided for 

in [c. 209C] and shall have jurisdiction concurrently with the 

[D]istrict [Court] and [the BMC] [D]epartments of actions 

relative to paternity or support as provided in [c. 209C]").
15

proceedings involving nonmarital children, see discussion supra,

the scope of the authority of a judge of the Juvenile Court in 

care and protection proceedings to issue "permanent" custody to 

the parent of a nonmarital child must be more limited than 

advocated by the child. See DiMasi v. Secretary of the 

Commonwealth, 491 Mass. 186, 197 (2023), quoting Collatos v. 

Boston Retirement Bd., 396 Mass. 684, 687 (1986) ("The 

'statutory expression of one thing is an implied exclusion of 

other things omitted from the statute'").

The limited nature of the "permanent" custody order of the 

Juvenile Court is bolstered by the fact that any "permanent" 

custody order is subject to review and redetermination in view 

of the current needs of the child "not more than once every 

[six] months" at the request of, inter alia, the department, the 

child, or the parents. G. L. c. 119, § 26 (c). See Care & 

Protection of Thomasina, 75 Mass. App. Ct. 563, 570 (2009). At 

a review and redetermination proceeding, the Juvenile Court 

judge revisits the permanent custody order. See Care & 

Protection of Erin, 443 Mass. 567, 571 (2005). "This provision 

is 'primarily, the means by which a parent or other interested 

party, including the department, may bring to a judge's 

attention a change in the situation of a child, or of a child's 

parent, which might warrant reconsideration or modification of 

the original order adjudicating the child in need of care and 
16

protection.'" Adoption of Helen, 429 Mass. 856, 861 (1999), 

quoting Care & Protection of Isaac, 419 Mass. 602, 611–612 

(1995).22

In the case of nonmarital children, whose custody under 

G. L. c. 209C, § 10 (b), "shall" remain with the mother until an 

order of the Probate and Family Court to the contrary, a

Juvenile Court judge, as the second judge did here, may conclude 

that "intervention by the [Juvenile C]ourt" is needed until the 

father can have the custody issue determined by a Probate and 

Family Court judge. G. L. c. 119, § 26 (c). This reading 

harmonizes the Legislature's directive that custody of a 

nonmarital child "shall" be with the mother in the absence of an 

order of a Probate and Family Court judge, with the Juvenile 

Court's limited authority to issue orders awarding permanent

custody to a parent "qualified to give care" in connection with 

the care and protection process. G. L. c. 119, 

§ 26 (b) (2) (i). Therefore, the second judge properly 

concluded that keeping the care and protection proceeding open

was in the best interest of the child, thereby allowing the 

22 The party seeking a review and redetermination proceeding 

has the burden to go forward with credible evidence of such a 

change, but "the department bears the ultimate burden to prove

[by clear and convincing evidence] that the child is still in 

need of care and protection." Care & Protection of Erin, 443 

Mass. at 572.
17

father to secure custody in the forum provided by the 

Legislature for him to do so.

ii. Substantive due process. The child also contends that 

requiring the father, who has been found to be "qualified to 

give care" by the Juvenile Court judge, G. L. c. 119, 

§ 26 (b) (2) (i), to obtain custodial orders in the Probate and 

Family Court infringes on the rights of fit parents to raise 

their children free from unwarranted State involvement and 

judicial scrutiny. To be sure, the due process clauses of the 

Fourteenth Amendment to the United States Constitution and of 

art. 12 of the Massachusetts Declaration of Rights protect the 

"fundamental right of parents to make decisions concerning the 

care, custody, and control of their children." Troxel v. 

Granville, 530 U.S. 57, 66 (2000). Blixt v. Blixt, 437 Mass. 

649, 652-653 (2002), cert. denied, 537 U.S. 1189 (2003). 

Nonetheless, the Commonwealth has a compelling interest in the 

welfare of children. Blixt, supra at 656. See Matter of 

McCauley, 409 Mass. 134, 136 (1991). And the child rightly does 

not contend either that the care and protection proceedings 

delineated in G. L. c. 119, §§ 24-26, or that the statutory 

scheme targeted to protect the welfare of nonmarital children

set forth in G. L. c. 209C, are not narrowly tailored to that 

interest such that either process violates the Federal or State 

Constitutions. See Finch v. Commonwealth Health Ins. Connector 
18

Auth., 461 Mass. 232, 236 (2012) (to pass strict scrutiny, 

statutory scheme "[1] must be narrowly tailored to further a 

legitimate and compelling governmental interest and [2] must be 

the least restrictive means available to vindicate that 

interest" [citation omitted]).

Instead, the child's argument centers on the claim that the 

father must be excused from pursuing a custody determination in 

the Probate and Family Court –- a process that has been 

available to the father since the child's birth –- by virtue of 

the fact that the child, while under the mother's care, was the 

subject of a care and protection proceeding during which the 

father was found to be "qualified to give care to the child." 

G. L. c. 119, § 26 (b) (2) (i). In other words, the child 

asserts that the Legislature's decision to limit the authority 

of the Juvenile Court to issue custodial orders in connection 

with a care and protection proceeding involving a nonmarital 

child violates substantive due process.

Because there is no fundamental right to a particular 

forum, we apply a rational basis review. See Gillespie v. 

Northampton, 460 Mass. 148, 153 (2011) (statutes that do not 

"collide with a fundamental right" subject to rational basis 

standard of judicial review). Where a court reviews a law for 

rational basis, it owes the utmost deference to the Legislature. 

See Carleton v. Framingham, 418 Mass. 623, 631 (1994). "Under 
19

the rational basis standard, a statute is constitutionally sound 

if it is reasonably related to the furtherance of a valid State 

interest." Gillespie, supra, citing Goodridge v. Department of 

Pub. Health, 440 Mass. 309, 330 (2003). A party raising such a 

challenge has "a heavy burden to meet" under this standard of 

review," and we will recognize every rational presumption in 

favor of the legislation." Carleton, supra, citing American 

Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 190 

(1978).

Here, the Commonwealth has an important interest in having 

custody matters involving nonmarital children finally determined 

in one forum: the Probate and Family Court. The Legislature 

has set forth specific, detailed guidelines for Probate and 

Family Court judges to follow. See discussion supra. Such 

centralization of custody rationally relates to the goal of 

producing consistent custodial decisions and facilitates the 

Legislature's goal of treating marital and nonmarital children 

equally. See G. L. c. 209C, § 1. Providing one forum for final

determinations of child custody is well within the Legislature's 

purview.23 See, e.g., Exxon Mobil Corp. v. Attorney Gen., 479 

23 We do not address the child's belated argument that the 

limits on the authority of the Juvenile Court regarding 

nonmarital child custody matters violates equal protection. See 

Assessors of Boston v. Ogden Suffolk Downs, Inc., 398 Mass. 604, 

608 n.3 (1986) ("Any issue raised for the first time in an 
20

Mass. 312, 329 (2018), cert. denied, 139 S. Ct. 794 (2019)

(Legislature may designate jurisdiction over certain civil 

actions to one or more Trial Court departments).

We are not unsympathetic to the child's protest that the 

requirement of seeking a final determination regarding custody 

in the Probate and Family Court has resulted in some delay, 

during which time the care and protection case remains pending

and there is at least the specter of continued State 

involvement. But the delay cannot be placed entirely at the 

feet of the busy court docket; a father, like the father in the 

present case, who has acknowledged paternity need not wait until 

the institution of a care and protection proceeding by the 

department to seek custody of the nonmarital child. See G. L. 

c. 209C, § 10 (b). Rather, that avenue has been available to 

the father since the child's birth. The fact that a nonmarital 

child may be the subject of a care and protection action in the 

Juvenile Court does not render unreasonable the Legislature's 

choice to solemnize custodial orders in a different forum. See 

appellant's reply brief comes too late, and we do not consider 

it"); Allen v. Allen, 86 Mass. App. Ct. 295, 302 n.11 (2014)

(same). We note, however, that the Probate and Family Court has 

jurisdiction over modification of custody matters generally, see 

G. L. c. 208, § 28, and that the purpose of the nonmarital child 

statutory scheme is to ensure that such children are treated the 

same as marital children -- a goal that is achieved by 

centralization of custody decisions in the Probate and Family 

Court. See G. L. c. 209C, § 1.
21

Exxon Mobile Corp., 479 Mass. at 329. In fact, where, as here, 

the mother has been found to be unfit and the father is fit, the 

Legislature has directed the Probate and Family Court to award 

custody to the fit parent. See G. L. c. 209C, § 10 (c).

In any event, as a result of the process delineated in 

G. L. c. 119, §§ 24-26, the father has had legal custody of the 

child for years. The relief provided in § 26 for review and 

redetermination of the custody order in this case is theoretical 

only because none of the parties intends to seek such relief. 

Indeed, the department represents that it plans to close its 

case with the family in response to the child achieving 

permanency with his father.24 While the potential of State 

involvement is no doubt unsettling, nothing in the process set 

forth under G. L. c. 209C "shocks the conscience" (citation 

omitted). Murphy v. Commissioner of Correction, 493 Mass. 170, 

176 (2023).25

24 As the department asserts, nothing in the record suggests 

that the father and child "would continue to receive home visits 

from probation officers or that the court investigator remained 

involved in the case. Nor is there any indication that a court 

appointed special advocate (CASA), or guardian ad litem had been 

appointed in this case. And, as [the c]hild has been placed in 

[the f]ather's custody, there is no need for annual permanency 

hearings pursuant to G. L. c. 119, § 29B."

25 We deny the department's motion to strike the child's 

January 11, 2024, postargument letter purportedly filed pursuant 

to Mass. R. A. P. 22 (c) (2), as appearing in 481 Mass. 1651 

(2019). We note, however, that we have not relied on the 

contents of the challenged letter in reaching our decision.
22

3. Conclusion. Based on the foregoing, we affirm the 

challenged order of the Juvenile Court denying the child's 

motion to dismiss.

So ordered.