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19-P-296 Appeals Court

GUARDIANSHIP OF MINOR CHILDREN.

No. 19-P-296.

Essex. February 3, 2020. - April 13, 2020.

Present: Green, C.J., Wolohojian, & Sullivan, JJ.

Probate Court, Guardian, Jurisdiction. Jurisdiction, Probate 

Court. Practice, Civil, Guardianship proceeding, 

Dismissal.

Petitions for appointment of guardians filed in the Essex 

Division of the Probate and Family Court Department on December 

3, 2013.

Motions to dismiss petitions for removal of guardians,

filed on February 13, 2018, were heard by Jennifer M.R. Ulwick, 

J.

Robert E. Curtis, Jr., for the father.

Erin Whelan Pennock for the guardians.

John P. Dennis for the children.

WOLOHOJIAN, J. At issue is whether the Essex Division of 

the Probate and Family Court Department (probate court), having 

appointed permanent guardians over three minor children, had

exclusive continuing "home state" jurisdiction over the 
2

petitions to remove those guardians and, if not, whether the 

probate judge abused her discretion in declining to exercise 

jurisdiction in favor of California, where the children and the 

guardians have lived for several years. We conclude that the 

probate court did not have home State jurisdiction over the 

termination petitions; nor did it have jurisdiction under any of 

the other provisions of G. L. c. 209, § 2. We accordingly 

affirm the dismissal of the termination petitions without 

reaching the question whether the judge acted within her 

discretion when she declined jurisdiction on forum non 

conveniens grounds.

Background. In 2013, Steven and Maria Fitzgerald

(Fitzgeralds), long-time residents of California, filed a 

petition with the probate court seeking to be appointed 

guardians of the three minor children.1 The children were 

already under the guardianship of Jeanette Maria Fitzgerald

(Jeanette),2 who was Steven's mother. But because of her 

advancing age, Jeanette, who was the children's greatgrandmother, wished to move to California to live with the 

Fitzgeralds and to have them assume guardianship of the 

 

1 Separate appointment and removal petitions were filed for 

each child. But for ease, we refer to each type of petition as 

a single petition in the background and discussion sections of 

this opinion.

2 We use the name that appears on the petitions.
3

children. This arrangement was agreed to by the children's 

mother, who was at that time not able to care for the children. 

These parties entered into an agreement to have the Fitzgeralds 

become the permanent guardians of the children, to permit the 

children to move to California to live with the Fitzgeralds, and 

to transfer jurisdiction to Los Angeles County. The terms of 

this agreement were incorporated into the guardianship decree, 

which entered on December 3, 2013.3 The father, who was 

incarcerated, did not appear in the guardianship proceeding, nor 

was he a party to the agreement.

As planned, the children moved to California, where they 

have lived with the Fitzgeralds continuously since the beginning 

of 2014. Despite the fact that the parties had agreed that 

jurisdiction would transfer to Los Angeles County, the 

Fitzgeralds never registered the guardianship decree with the 

California courts.4 They also recognized the probate court's 

continuing interest in the guardianship by complying with the 

requirement that they file annual reports on the status and 

progress of the children.

 

3 Separate decrees were entered for each child. But for 

ease, we refer to them collectively as a single decree in the 

background and discussion sections of this opinion.

4 We do not mean to suggest that registration was required, 

which is a matter that has not been briefed.
4

The father was released from incarceration in August 2017. 

Approximately six months later, on February 13, 2018, the 

father, contending that he was gainfully employed, had managed 

to put his troubles behind him, and was now fit to parent the 

children, filed a petition, pursuant to G. L. c. 190B, § 5-212,

to remove the Fitzgeralds as guardians of the children and to 

assume custody of the children. The father also contended that 

the 2013 guardianship decree was void for lack of service. At 

the time of the termination petition, the father lived in 

Burlington and the mother lived in Connecticut.5

The Fitzgeralds responded to the petition in two ways. 

First, they filed papers in a California court seeking to 

register the guardianship decree.6 Second, they moved in the 

probate court to dismiss the father's termination petition on 

jurisdictional grounds. The Fitzgeralds noted that they have 

lived in California since 1994 and are gainfully employed there. 

They represented that they have substantial evidence regarding 

 

5 We have taken the mother's residence from the address on 

the affidavit of service.

6 The father asks that we take judicial notice of the fact 

that the California Superior Court in Los Angeles County denied 

the registration without prejudice to its refiling in the 

Probate Division. This information was not available at the 

time the judge ruled on the Fitzgeralds' motion to dismiss the 

termination petition. Even taking it into account, however, it 

would not affect the jurisdictional analysis, except as we note 

in note 9, infra.
5

the children's care, protection, training, and personal 

relationships in California. The Fitzgeralds further noted that 

it was likely a guardian ad litem would need to be appointed in 

order to help determine the best interest of the children, and 

that California would be a more convenient forum. The 

Fitzgeralds' motion to dismiss was accompanied by an affidavit 

from a California attorney explaining certain provisions of 

California's Family Code and opining that the Los Angeles County 

Superior Court would likely accept jurisdiction over the 

guardianship termination proceeding were jurisdiction declined 

by the probate court. The Fitzgeralds also averred that the 

father had been served by various means, including by service on 

the correctional facility at which he was then housed, with the 

original guardianship petition, and that he had received notice 

of the guardianship proceedings.

After a hearing, the probate judge allowed the motion to 

dismiss on alternative grounds. First, the judge concluded that 

she did not have jurisdiction over the termination petition 

because Massachusetts was neither the home State of the children 

on the date the termination petition was filed, nor had it been 

the children's home State during the previous six months. G. L. 

c. 209B, § 2 (a) (1). Second, in the alternative, the judge 

concluded that, even if the probate court had jurisdiction, she 

would decline to exercise it in favor of California as the more 
6

convenient forum. G. L. c. 209B, § 7 (a), (b). It is clear 

from the transcript of the hearing that the judge was 

particularly concerned about the fact that important witnesses, 

such as the children's teachers, therapists, and doctors, were 

located in California and could not be compelled to come to 

Massachusetts. In the judge's view, the inability to obtain 

such important information bearing on the children's best 

interest made Massachusetts a less convenient forum than 

California. Finally, the judge concluded that the father could 

not collaterally attack the validity of the guardianship decree 

by way of a petition to remove the guardians. Rather, the 

father's argument that the guardianship decree was void for lack 

of service should have instead been raised via a motion pursuant 

to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) (rule 60 [b]). 

To preserve the father's ability to pursue that avenue of 

relief, the judge's dismissal of the petition was without 

prejudice to the father's ability to file a rule 60 (b) motion.

Discussion. On appeal, the father challenges the dismissal 

of the termination petition on two grounds. First, he contends 

that as the probate court entered the guardianship decree, it

retained exclusive continuing home State jurisdiction over all 

matters thereafter pertaining to the guardianship, including its 

termination. In connection with this argument, he points to the 

continuing status of the guardianship, the filing of annual 
7

status reports in Massachusetts, and the fact that the 

Fitzgeralds never registered the guardianship in California. 

Second, the father contends that the guardianship decree was 

void for lack of service. We address each of these arguments in 

turn.

"A Massachusetts court's exercise of jurisdiction over 

custody determinations must be based solely on the 

[Massachusetts Child Custody Jurisdiction Act (MCCJA)], G. L. 

c. 209B." MacDougall v. Acres, 427 Mass. 363, 366 (1998). See 

Redding v. Redding, 398 Mass. 102, 106 (1986). This means that 

"[j]urisdiction must be exercised pursuant to any of the four 

subsections of G. L. c. 209B, § 2 (a)." Guardianship of Zeke, 

422 Mass. 438, 441 (1996). Those four subsections provide that 

"[a]ny court which is competent to decide child custody matters 

has jurisdiction to make a custody determination by initial or 

modification judgment if:

"(1) the commonwealth (i) is the home state of the child on 

the commencement of the custody proceeding, or (ii) had 

been the child's home state within six months before the 

date of the commencement of the proceeding and the child is 

absent from the commonwealth because of his or her removal 

or retention by a person claiming his or her custody or for 

other reasons, and a parent or person acting as parent 

continues to reside in the commonwealth; or

"(2) it appears that no other state would have jurisdiction 

under paragraph (1) and it is in the best interest of the 

child that a court of the commonwealth assume jurisdiction 

because (i) the child and his or her parents, or the child 

and at least one contestant, have a significant connection 

with the commonwealth, and (ii) there is available in the 
8

commonwealth substantial evidence concerning the child's 

present or future care, protection, training, and personal 

relationships; or

"(3) the child is physically present in the commonwealth 

and (i) the child has been abandoned or (ii) it is 

necessary in an emergency to protect the child from abuse 

or neglect or for other good cause shown, provided that in 

the event that jurisdictional prerequisites are not 

established pursuant to any other paragraph of this 

subsection and a court of another state shall be entitled 

to assert jurisdiction under any other subparagraph of this 

paragraph then a court exercising jurisdiction pursuant to 

this clause of paragraph (3) may do so only by entering 

such temporary order or orders as it deems necessary unless 

the court of the other state has declined to exercise 

jurisdiction, has stayed its proceedings or has otherwise 

deferred to the jurisdiction of a court of the 

commonwealth; or

"(4) (i) it appears that no other state would have 

jurisdiction under prerequisites substantially in 

accordance with paragraph (1), (2) or (3), or another state 

has declined to exercise jurisdiction on the ground that 

the commonwealth is the more appropriate forum to determine 

the custody of the child, and (ii) it is in the best 

interest of the child that a court of the commonwealth 

assume jurisdiction."

G. L. c. 209B, § 2 (a). These can be referred to more simply as 

(1) home State jurisdiction, (2) default jurisdiction, (3) 

emergency jurisdiction, and (4) appropriate forum jurisdiction. 

See MacDougall, supra at 368-369.

Home State jurisdiction exists where Massachusetts is the 

"home state of the child on the commencement of the custody 

proceeding." G. L. c. 209B, § 2 (a) (1) (i). A "custody 

proceeding" "includes proceedings in which a custody 

determination is one of several issues presented for resolution, 
9

such as an action for divorce or separation, guardianship, and 

care and protection." G. L. c. 209B, § 1. There is no doubt 

that the father's petition to terminate the guardianship is a 

custody proceeding; it sought to change the custody of the 

children from the Fitzgeralds to himself. "Home state" is 

defined as "the state in which the child immediately preceding 

the date of commencement of the custody proceeding resided with 

his [or her] parents, a parent, or a person acting as parent, 

for at least [six] consecutive months." Id. There is likewise 

no dispute that the children had lived in California with the 

Fitzgeralds for at least six consecutive months before the date 

that the termination petition was filed and that, therefore, 

California was the home State of the children at the time the 

petition was filed. We note that California has enacted 

parallel provisions of the Uniform Child Custody Jurisdiction 

Act under which it uses the same definition of home State as 

Massachusetts. See Cal. Fam. Code § 3402(g).7

The father argues, however, that the court's jurisdiction 

should not be assessed as of the date of the filing of the 

termination petition, but rather as of the date of the original 

guardianship petition. His view is that guardianships are 

different from other types of custody orders because the court 

 

7 Also, Cal. Fam. Code § 3421 is parallel to G. L. c. 209B, 

§ 2.
10

retains continuing oversight of them, as evidenced in this case 

by the requirement that the Fitzgeralds file annual reports on 

the status and well-being of the children. The father also 

points to G. L. c. 190B, § 5-201, which provides that the 

guardianship status of minors "continues until terminated, 

without regard to the location from time to time of the guardian 

or minor ward." The continuing nature of a guardianship, in the 

father's view, means that the court continues to have home State

jurisdiction over the guardianship as long as the guardianship

lasts -- regardless of the physical location of the children.8

Our law does not support this view. Instead, jurisdiction 

under the MCCJA must exist at the time the court is being called 

on to act; it is not enough that home State jurisdiction existed 

at some previous point in time. See Adoption of Yvette (No. 1), 

71 Mass. App. Ct. 327, 336 n.12 (2008). The statute provides 

that the court has "jurisdiction to make a custody determination 

by initial or modification judgment." G. L. c. 209B, § 2 (a). 

"Use of the disjunctive signals a legislative intention to treat 

modification proceedings as distinct from initial ones. Reason 

favors treating modification proceedings as separate and fresh 

ones because, if it were otherwise, jurisdiction would lodge 

 

8 The father also places much weight on Guardianship of 

Enos, 41 Mass. App. Ct. 360 (1996). Enos, however, has no 

bearing here; it does not involve a minor or the provisions of 

the MCCJA.
11

perpetually with the State where the initial custody order had 

been made, potentially long after that State had any relevant 

contact with the child." Umina v. Malbica, 27 Mass. App. Ct. 

351, 358 (1989). See MacDougall, 427 Mass. at 370. "[I]t is 

not unusual for a court which exercised original jurisdiction to 

lose 'home state' jurisdiction." Custody of Brandon, 407 Mass. 

1, 10 (1990), quoting Umina, supra. A Massachusetts court does 

not have continuing home State jurisdiction unless the 

requirements of MCCJA home State jurisdiction are satisfied at 

the time that modification of an existing custodial arrangement 

is sought. See MacDougall, supra ("Massachusetts continuing 

jurisdiction in this case is predicated on its having 

jurisdiction under its own laws"); Umina, supra ("Massachusetts 

. . . does not explicitly reserve jurisdiction under a 

continuing jurisdiction or a 'best interest' provision"). 

Guardianships are no different in this regard from any other 

custody determination. For these reasons, we agree with the 

judge that home State jurisdiction under § 2 (a) (1) did not 

exist over the father's termination petition.

Nor did the court have jurisdiction under the three 

remaining subsections of G. L. c. 209B, § 2 (a). Default 

jurisdiction under § 2 (a) (2) "allows Massachusetts courts to 

exercise jurisdiction over a custody proceeding if 'no other 

[S]tate would have jurisdiction under paragraph (1)' and the 
12

best interest of the child would be served by the court assuming 

jurisdiction of the matter." Custody of Victoria, 473 Mass. 64, 

71 (2015), quoting G. L. c. 209B, § 2 (a) (2). Here, the 

children have lived in California for over four years and 

California accordingly has home State jurisdiction. Thus, a 

necessary predicate for default jurisdiction in Massachusetts 

does not exist.

Emergency jurisdiction under § 2 (a) (3) may be exercised 

in appropriate circumstances where the child is physically in 

Massachusetts. That is not the case here, nor does the father 

claim any emergency.

Finally, under § 2 (a) (4), appropriate forum jurisdiction 

"allows Massachusetts courts to exercise jurisdiction over 

custody if (i) no other State would have jurisdiction under any 

of the first three paragraphs or another State has 'declined to 

exercise jurisdiction on the ground that the [C]ommonwealth is 

the more appropriate forum to determine the custody of the 

child,' and (ii) it is in the 'best interest of the child' for 

Massachusetts to assume jurisdiction." Custody of Victoria, 473 

Mass. at 71-72, quoting G. L. c. 209B, § 2 (a) (4). As we have 

already noted, because California is the home State, 

jurisdiction would not lie under the first prong of § 2 (a) (4) 

(i). In addition, because there was nothing before the judge to 

suggest that California would decline to exercise jurisdiction 
13

in favor of Massachusetts as the more appropriate forum, 

jurisdiction also would not lie under the second prong of 

§ 2 (a) (4) (i).9

Because jurisdiction did not lie under § 2, we need not 

examine whether the judge appropriately exercised her discretion 

when she declined jurisdiction on forum non conveniens grounds 

under G. L. c. 209B, § 7. The jurisdictional analysis under 

G. L. c. 209B is a two-step one in which the first step is to 

determine whether, under § 2, the court has the power to 

exercise jurisdiction in a custody proceeding; if the court has

that power, the second step is to determine whether it should 

decline to exercise that power as a matter of discretion under 

§ 7.10 See Custody of Brandon, 407 Mass. at 5; Hernandez v. 

Branciforte, 55 Mass. App. Ct. 212, 217 (2002). Here, because 

 

9 However, we note that the question of jurisdiction does 

not yet appear to have been put to a California court, and 

therefore, we cannot definitively foreclose the possibility that 

California might decline to exercise jurisdiction for some 

reason. If that were to become the case, then the father would 

not be foreclosed from returning to Massachusetts, claiming 

jurisdiction under the second prong of § 2 (a) (4) (i).

10 "A court which has jurisdiction pursuant to [G. L.

c. 209B, § 2,] may decline to exercise its jurisdiction at any 

time prior to making a custody determination upon finding that 

its assumption of jurisdiction would be (i) violative of the 

purposes of this chapter; or (ii) would be based upon the 

illegal or otherwise wrongful conduct of a party; or (iii) would 

constitute an inconvenient forum and that a court of another 

state would constitute a more convenient forum." G. L. c. 209B, 

§ 7 (a).
14

the court did not have the power to exercise jurisdiction under 

§ 2, we need not examine the judge's alternative conclusion that 

she would have declined to exercise jurisdiction if she had had 

it.

This leaves the father's contention that the guardianship 

decree was void for lack of service. Like the probate judge, we 

conclude that a petition to remove the guardians is not the 

appropriate mechanism to challenge the validity of the 

underlying guardianship decree, which instead should be brought 

via a rule 60 (b) (4) motion or an independent action. See 

Reporters' Notes to Rule 60, Mass. Ann. Laws Court Rules, Rules 

of Civil Procedure, at 1259 (2018) ("Rule 60 [b] [4] allows 

relief from a void judgment . . . . A judgment is void only if 

the court rendering it lacked jurisdiction of the subject matter 

or of the parties, or where it acted in a manner inconsistent 

with due process of law"). See also Fleishman v. Stone, 57 

Mass. App. Ct. 916 (2003) (rule 60 [b] [4] motion used to have 

judgment declared void for lack of service). The judge 

deliberately left open the father's ability to bring such a 

motion or independent action, and nothing in our opinion here is 

to be read to curtail or diminish the father's right to do so.

Conclusion. We affirm the judgments dismissing the 

father's petitions to terminate the guardianships for lack of 

jurisdiction under G. L. c. 209B, § 2, without prejudice to the 
15

father's ability to challenge the guardianship decrees as void 

pursuant to rule 60 (b) (4).

So ordered.