A SILVER LINING IN DOMESTIC

TURMOIL: A CALL FOR

MASSACHUSETTS TO ADOPT THE
UCCJEAS EMERGENCY
JURISDICTION PROVISION

Julie A. Morley*
Abstract: Every year, numerous individuals are subjected to domestic
violence at the hands of an abusive spouse. A victims 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Child Custody Jurisdiction Act (UCCJA), an outdated uniform child custody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
UCCJEAs revised emergency jurisdiction provision allows a state to

* Candidate for Juris Doctor, New England School of Law (2009). B.S., Political Science &
History, summa cum laude, University of Scranton (2006).

135
136 NEW ENGLAND LAW REVIEW [Vol. 43:135

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 UCCJEAs

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 UCCJEAs 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.

One evening Kevin beat me for several hours, a cycle which had
become utterly routine . . . . Finally he hauled [our son] and
several guns into the bedroom, vowing to kill my son if he heard
any sound at all. I spent that night crouching in a corner at the
farthest end of the house, holding my daughter in my arms and
quieting her, my hand over her mouth, when she awoke
whimpering. The next evening, Kevin beat me again and choked
me unconscious. My last thought before blacking out was that
this time I would dieleaving my children alone with this
man . . . . Too numb to feel fear, something finally snapped . . . .
[I] decided that if I lived through that night, I would take [the
1
children] and run away.

INTRODUCTION
Every year, numerous individuals are subjected to domestic violence
at the hands of an abusive spouse or intimate partner. 2 A victims decision

1. SANA LOUE, INTIMATE PARTNER VIOLENCE: SOCIETAL, MEDICAL, LEGAL, AND

INDIVIDUAL RESPONSES 132 (2001) (recounting a domestic violence victims decision-
making process when finally deciding to leave her abusive partner).
2. See generally U.S. DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS, CRIME
CHARACTERISTICS (2006), http://www.ojp.usdoj.gov/bjs/cvict_c.htm. Under the Violence
Against Women Act, domestic violence includes the following:
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 137

to leave his or her abusive partner is usually a difficult one, as factors like
financial dependency on the batterer, denial of the abuse, and remaining
feelings of love or affection all play significant roles. 3 Further
compounding these factors is the overriding fear victims have in leaving
their abusers, and the reality that the time period when a victim does decide
to leave is usually the most dangerous, as the risk of another reoccurring
violent episode significantly escalates. 4
When a victim does decide to leave an abusive spouse, many issues
besides safety are left unresolved. One significant issue is the harsh custody
battle that will play out in courts over any children the relationship has
produced. 5 Particularly, victims whose safety is in danger sometimes
decide to flee with their children to a confidential out-of-state location to
truly regain safety and autonomy. 6 In situations like these, issues of
jurisdiction are raised in determining which state may make a child custody
determination. Currently, Massachusetts follows the Massachusetts Child
Custody Jurisdiction Act (MCCJA) when deciding interstate child

[F]elony or misdemeanor crimes of violence committed by a current or

former spouse of the victim, by a person with whom the victim shares a
child in common, by a person who is cohabitating with or has
cohabitated with the victim as a spouse, by a person similarly situated to
a spouse of the victim under the domestic or family violence laws of the
jurisdiction receiving grant monies, or by any other adult person against
a victim who is protected from that persons acts under the domestic or
family violence laws of the jurisdiction receiving grant monies.
42 U.S.C. 3796gg-2 (2000) (incorporated into the definition section of 42 U.S.C.
13925(a)(6) (2006)).
3. PETER G. JAFFE ET AL., CHILD CUSTODY & DOMESTIC VIOLENCE: A CALL FOR SAFETY
AND ACCOUNTABILITY 9-10 (2003).
4. See LUNDY BANCROFT & JAY G. SILVERMAN, THE BATTERER AS PARENT:
ADDRESSING THE IMPACT OF DOMESTIC VIOLENCE ON FAMILY DYNAMICS 99 (2002) (finding
that when victims leave their abusive spouses, they are four times more likely to experience
another assault than those victims who remain with their abusers); Catherine F. Klein et al.,
Border Crossings: Understanding the Civil, Criminal, and Immigration Implications for
Battered Women Fleeing Across State Lines with Their Children, 39 FAM. L.Q. 109, 109-10
(2005).
5. See Deborah M. Goelman, Shelter from the Storm: Using Jurisdictional Statutes to
Protect Victims of Domestic Violence After the Violence Against Women Act of 2000, 13
COLUM. J. GENDER & L. 101, 101 (2004). The term custody encompasses the physical and
legal custody of a child that may be awarded to one or both parents. JAFFE ET AL., supra note
3, at 3-4. Physical custody is defined as the right to physically have the child live with a
parent and have visitation (or access) with the other parent, while legal custody is defined
as the right to make major decisions about a childs care, such as a childs education,
medical care, and religious upbringing. Id.
6. Klein et al., supra note 4, at 110.
138 NEW ENGLAND LAW REVIEW [Vol. 43:135

custody issues. 7 For the most part, 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 on Uniform State Laws (NCCUSL) 8 that
was subsequently adopted by all fifty states, the District of Columbia, and
the U.S. Virgin Islands. 9
However, there are many troubling aspects of the MCCJA.
Specifically, the MCCJAs 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. 10 While this provision
does protect children from abuse, it is completely silent as to any sort of
protection for parents or siblings who may also be in danger of abuse. With
a push from domestic violence advocacy groups and the lack of protection
for other victims of violence in mind, the NCCUSL developed a new
uniform statute called the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) in 1994. 11 The emergency jurisdiction
provision of the UCCJEA allows a state to exercise emergency jurisdiction
if it is necessary to protect the child because the child, or a sibling or
parent of the child, is subjected to or threatened with mistreatment or
abuse. 12
Recently, a bill has been introduced into the Massachusetts legislature
which would require the Commonwealth to adopt the UCCJEA as its main
child custody jurisdiction statute. 13 This Note will argue that Massachusetts
should adopt the emergency jurisdiction provision of the UCCJEA. Part I
of this Note will discuss the general framework of the MCCJA and the
situations under which a Massachusetts court may take jurisdiction in

7. MASS. GEN. LAWS ch. 209B, 2 (2006).

8. See Joan Zorza, The UCCJEA: What Is It and How Does It Affect Battered Women
in Child-Custody Disputes, 27 FORDHAM URB. L.J. 909, 909 (2000). But see Umina v.
Malbica, 538 N.E.2d 53, 55-57 (Mass. App. Ct. 1989) (finding several differences between
the UCCJA and the MCCJA to hold that the MCCJA is far from a carbon copy of the
Uniform Child Custody Jurisdiction Act).
9. Sara E. Reynolds, International Parental Child Abduction: Why We Need to Expand
Custody Rights Protected Under the Child Abduction Convention, 44 FAM. CT. REV 464,
470 (2006).
10. Ch. 209B, 2(a)(3) (emphasis added).
11. See Zorza, supra note 8, at 913-14.
12. UNIF. CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT 204(a), 9 U.L.A. 676
(1997) (emphasis added).
13. See H.R. 1657, 185th Gen. Court, Reg. Sess. (Mass. 2007) (as presented by Rep.
Eugene L. O'Flaherty), available at http://www.mass.gov/legis/bills/house/185/ht01pdf/ht
01657.pdf.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 139

interstate child custody disputes. 14 More specifically, this section will

analyze the scope of the MCCJAs emergency jurisdiction provision and
how the statutes language has been developed through Massachusetts case
law. 15 Part II of this Note will examine the history of uniform and federal
child custody jurisdictional statutes in this country, focusing primarily on
the UCCJA and the Parental Kidnapping Prevention Act (PKPA). 16 Part
III of this Note will examine the jurisdictional provisions of the UCCJEA,
specifically focusing on its updated emergency jurisdiction provision which
now provides greater protection for not only abused children, but also for
abused parents and siblings. 17
Finally, Part IV of this Note will argue that Massachusetts must
immediately adopt the UCCJEAs emergency jurisdiction provision. 18 An
adoption of the UCCJEAs emergency jurisdiction criteria is necessary in
order to afford protection to victims of domestic violence, to provide even
greater protection to children who witness family violence, to help provide
uniformity to child custody jurisdictional laws throughout the country, and
to support a state policy which places individual safety above all other
issues. 19 Presently, the UCCJEA represents the best child custody
jurisdictional statute available and, if adopted, will serve as a remarkable
improvement over the MCCJA. 20

I. The Massachusetts Child Custody Jurisdiction Act

Massachusetts adopted the MCCJA in 1983 to use when presented
with an interstate child custody dispute. 21 Massachusetts was the last state
in the nation to enact the UCCJA and its enacted version differs slightly
from the original uniform act. 22 Courts in the Commonwealth have noted
that the purpose of both the Massachusetts and the Uniform Acts is to
discourage dragging children into the courts of whatever State they may
happen to be in at a particular moment and to discourage competition

14. See infra Part I.

15. See infra Part I.
16. See infra Part II.
17. See infra Part III.
18. See infra Part IV.
19. See infra Part IV.
20. See Zorza, supra note 8, at 934-35.
21. See generally MASS. GEN. LAWS ch. 209B (2006).
22. See Umina v. Malbica, 538 N.E.2d 53, 55-57 (Mass. App. Ct. 1989) ([The]
MCCJA is far from a carbon copy of the Uniform Child Custody Jurisdiction Act.). The
differences between the MCCJA and the UCCJA, however, do not have any relevance for
this Note.
140 NEW ENGLAND LAW REVIEW [Vol. 43:135

among the States. 23

Under the MCCJA, a determination of custody jurisdiction requires a
two-part test. 24 First, the Massachusetts court must determine whether
Section 2 of the MCCJA allows jurisdiction at all. 25 Second, the state court
must also determine whether it should exercise jurisdiction at all, in light of
Section 7s factors. 26

A. MCCJAs General Jurisdictional Rules

Under Section 2 of the MCCJA, a court may exercise interstate child
custody jurisdiction under one of four different provisions: (1) home state
jurisdiction, (2) significant connection jurisdiction, (3) only state available
jurisdiction, and (4) emergency jurisdiction. 27 While this Note will focus
primarily on the MCCJAs emergency jurisdiction powers, some
background on the other jurisdictional grounds is necessary to fully
understand how interstate child custody disputes work in Massachusetts.
First, home state jurisdiction is satisfied if Massachusetts is the home
state of the child on the commencement of the custody proceeding, or []
had been the childs home state within six months before the date of the
commencement of the proceeding and the child is absent from the
commonwealth . . . and a parent . . . continues to reside in the
commonwealth. 28
Second, significant connection jurisdiction occurs when no other
state can satisfy the home state jurisdiction requirements and a
Massachusetts court, looking at the best interests of the child, takes
jurisdiction because the child and his or her parents . . . have a significant
connection with the commonwealth, and [] there is available in the
commonwealth substantial evidence concerning the childs present or

23. Id. at 59.

24. Id. at 56.
25. Id.; see ch. 209B, 2.
26. Umina, 538 N.E.2d at 56. Section 7 of the MCCJA lays out several factors for a
court to use in determining whether it should decline jurisdiction when the Commonwealth
may have otherwise properly executed a child custody order. MASS. GEN. LAWS ch. 209B,
7. These factors include: whether another state has a closer connection with the child,
whether more evidence is available in another state, whether another state is or was recently
the childs home state, and whether the parties agreed to another forum. Id. The analysis for
declining jurisdiction, however, will not be a focal point in this Note.
27. Ch. 209B, 2(a)(1)-(4). While physical presence of the child is preferred, the
MCCJA does not make it mandatory before a court may exercise jurisdiction. Id. 2(c).
28. Id. 2(a)(1). Home state is defined as the state in which the child immediately
preceding the date of commencement of the custody proceeding resided with his parents, a
parent, or a person acting as a parent, for at least 6 consecutive months. Id. 1.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 141

future care. 29 Finally, only state available jurisdiction is the default

jurisdictional basis available. If no other state can satisfy the home state,
significant connection, or emergency jurisdiction requirements, or if
another state has declined to exercise its jurisdictional authority, then a
Massachusetts court may properly exercise jurisdiction. 30

B. MCCJAs Emergency Jurisdiction

The emergency jurisdiction provision of the MCCJA provides that
the Commonwealth may take jurisdiction in a child custody matter if 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. 31 Through case law, the
emergency jurisdiction provision has been interpreted in both its scope and
depth to give direction as to the extent to which a Massachusetts court may
exercise authority, revealing in turn its very limited nature.
Under the MCCJA, a Massachusetts court only has the authority to
issue temporary child custody orders. 32 For example, in MacDougall v.
Acres, a daughter who lived with her father in Louisiana alleged that her
step mother was abusing her. 33 Subsequently, the girls birth mother filed a
complaint with a Massachusetts court seeking an emergency order for
custody. 34 The Massachusetts court determined that Louisiana had home
state jurisdiction in this case because the daughter had lived in the state for
over three years. 35 It further noted that when another State has
jurisdiction, the emergency jurisdiction of Massachusetts courts is limited
to issuing temporary orders designed to effectuate the other States
exercise of jurisdiction, yet keep the child safe. 36 Because Louisiana
properly had home state jurisdiction, which it refused to decline,
Massachusetts was required to give full faith and credit to its issuance of a
child custody decree. 37 Thus, Massachusetts was able to issue the
temporary emergency order to effectuate Louisianas jurisdiction but keep
the daughter with the mother until Louisiana ordered otherwise. 38

29. Id. 2(a)(2).

30. Id. 2(a)(4).
31. Id. 2(a)(3) (emphasis added).
32. MacDougall v. Acres, 693 N.E.2d 663, 667 (Mass. 1998).
33. Id. at 664.
34. Id.
35. Id. at 667.
36. Id. (emphasis added).
37. See id. at 668. For a discussion of the requirements of full faith and credit in the
child custody context, see infra Part II.
38. MacDougall, 693 N.E.2d at 668-69.
142 NEW ENGLAND LAW REVIEW [Vol. 43:135

The scope of these temporary child custody orders was discussed

further in Umina v. Malbica. 39 In this case, a mother who lived in Colorado
had initial custody of her three children. 40 After accounts of abuse and
neglect began to emerge, the childrens natural father, a Massachusetts
resident, sought modification of the original child custody decree to obtain
full custody of the children. 41 The Massachusetts court held that although
the judge could have found from evidence that the children were at risk for
abuse with their mother in Colorado, a temporary order granting the father
custody was the extent of the judges authority because Colorado
maintained home state jurisdiction. 42 The court interpreted the emergency
jurisdiction provision as only giving Massachusetts courts the power to
enter temporary ordersand not to hear the matters generallyunless the
court with home state jurisdiction has declined its jurisdiction. 43 Further,
these temporary emergency orders will always be trumped by subsequent
final decrees from a state court with proper home state jurisdiction. 44
Thus, the MCCJA remains the Commonwealths child custody
jurisdictional statute, despite the limited nature of its emergency
jurisdiction provision. However, in order to fully realize the drawbacks of
the MCCJA, it is necessary to understand the general background to
uniform child custody law in the nation and federal statutes which have
addressed interstate child custody disputes. 45 After comprehending where
child custody jurisdiction has been and where it is now for the vast majority
of states, the deficiencies of the MCCJAs emergency jurisdiction
provision become extremely apparent.

II. Predecessors in Uniform Child Custody Law: The Uniform Child

Custody Jurisdiction Act and the Parental Kidnapping Prevention
Act
Before 1968, states were not required to give full faith and credit to

39. 538 N.E.2d 53 (Mass. App. Ct. 1989).

40. See id. at 54.
41. Id.
42. Id. at 58.
43. Id.; see also Orchard v. Orchard, 686 N.E.2d 1066, 1070-71 (Mass. App. Ct. 1997)
(holding a Massachusetts judge abused his discretion when he awarded sole custody to a
mother based on emergency jurisdiction because the temporary order deprived the home
state Michigan, which had not declined jurisdiction, the ability to settle the mothers
contention of abuse and the fathers motion for custody).
44. See generally Mannor v. Mannor, 703 N.E.2d 716 (Mass. App. Ct. 1998) (finding
that even if a Massachusetts court had emergency jurisdiction to enter a temporary order
protecting children, such temporary orders are trumped by a subsequent final custody
judgment from the childs home state).
45. See infra Part II-III.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 143

another states child custody order. 46 This lack of recognition to another

states decree stemmed from the U.S. Supreme Courts decision in Halvey
v. Halvey, which held that since a custody decree was not irrevocable and
unchangeable; [another states] court had the power to modify it at all
times. 47 Understandably, this lack of recognition for finality of a child
custody decree led to a series of problems in enforcement. For example, it
was not at all unusual to have the non-custodial parent kidnap his or her
child and cross state borders in hopes of obtaining a more favorable
custody decree from a different state court. 48 In situations like that, most
states would hear the case on the merits again and then issue a new order
without giving any deference to the prior custody arrangement. 49 Shrouded
in this cloud of confusion, there was a call for uniformity in how state
courts handled interstate child custody jurisdictional issues. 50

A. Uniform Child Custody Jurisdiction Act

1. Background of the UCCJA

In light of our greatly mobile society, and in recognizing the problems
with differing child custody laws in the nation, a need for a coherent and
uniform national system related to child custody was imperative. The
National Conference of Commissioners on Uniform State Laws
(NCCUSL), a group of lawyers, judges, legal professors, and legislators
appointed by state governments to help develop legislation to bring clarity
and stability to critical areas of state statutory law, took on the charge of
cleaning up the child custody jurisdictional mess that had developed. 51 The
Conferences immediate plan was a standardized body of law that could

46. See Halvey v. Halvey, 330 U.S. 610, 612-14 (1947).

47. Id. The Full Faith and Credit Clause of the U.S. Constitution states: Full Faith and
Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of
every other State. U.S. CONST. art. IV, 1. This has come to mean the valid judgment of a
state court is entitled to full faith and credit in the court of a sister state if there is proper
jurisdiction, a final judgment, and a decision on the merits. Mary M. Beck, Adoption of the
Children in Missouri, 63 MO. L. REV. 423, 437 (1998) (emphasis added). Thus, since the
Supreme Court viewed child custody orders as both revocable and modifiable, such orders
were not entitled to full faith and credit by other states. See Halvey, 330 U.S. at 612-14.
48. The National Conference of Commissioners on Uniform State Laws, Summary
UCCJEA, available at http://www.nccusl.org/Update/uniformact_summaries/uniformacts-s-
uccjaea.asp (last visited Dec. 1, 2008).
49. See id.
50. See Klein et al., supra note 4, at 114.
51. See The National Conference of Commissioners on Uniform State Laws, About
NCCUSL, http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=0&tabid=9 (last
visited Dec. 1, 2008).
144 NEW ENGLAND LAW REVIEW [Vol. 43:135

serve as a model for the states. 52 Thus, the NCCUSL passed the UCCJA in
1968 to help foster uniformity among the state laws governing jurisdiction
over . . . child custody determinations through provisions aimed at
minimizing . . . parental kidnapping, forum shopping, jurisdictional
conflicts, and re-litigation of custody decisions issued by courts in other
states. 53 Specifically, the UCCJA sought to correct two problems that had
developed throughout the years: (1) jurisdictional conflicts in an interstate
child custody situation, and (2) parents kidnapping their children and
crossing state boundaries in order to obtain new custody orders. 54 Since its
initial passage in 1968, some version of the UCCJA was adopted by all
fifty states, the U.S. Virgin Islands, and the District of Columbia. 55

2. UCCJAs Emergency Jurisdiction

The emergency jurisdiction provision in the UCCJA states that a state
court may issue jurisdiction if the child is physically present in this State
and (i) the child has been abandoned or (ii) it is necessary in an emergency
to protect the child because he has been subjected to or threatened with
mistreatment or abuse or is otherwise neglected. 56 Under the UCCJA, like
the MCCJA, a parent who is the lone victim of abuse will not trigger the
requirements of emergency jurisdiction. 57 Generally, courts operating
under the UCCJA have been reluctant to invoke emergency jurisdiction
when the child has not been abused, despite the effects on children of
witnessing violence. 58 While some states have either amended the UCCJA
or used case law to expand emergency jurisdiction to cover domestic
violence situations, Massachusetts has failed to do either, thus perpetuating
the flaws of the UCCJAs emergency jurisdiction provision. 59

52. See Zorza, supra note 8, at 909.

53. Klein et al., supra note 4, at 114.
54. Zorza, supra note 8, at 909.
55. Reynolds, supra note 9, at 470.
56. UNIF. CHILD CUSTODY JURISDICTION ACT 3(a)(3), 9 U.L.A. 261 (1968) (emphasis
added). Similar to the MCCJA, the UCCJA provides four main avenues for child custody
jurisdiction: home state jurisdiction, significant connection jurisdiction, emergency
jurisdiction, and only state available jurisdiction. See Amy M. Palesch, A Small Amount of
Change for the Good of the Children: Replacing the Uniform Child Custody Jurisdiction
Act with the Uniform Child Custody Jurisdiction and Enforcement Act in South Carolina, 58
S.C. L. REV. 1049, 1052-53 (2007). This Note, however, will only focus on the UCCJAs
emergency jurisdiction provision.
57. Klein et al., supra note 4, at 115; see UNIF. CHILD CUSTODY JURISDICTION ACT
3(a)(3).
58. Goelman, supra note 5, at 121; see infra Part IV.
59. See Goelman, supra note 5, at 121-23.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 145

B. The Parental Kidnapping Prevention Act

1. Background to the PKPA

Even though the UCCJA was enacted to correct the jurisdictional
problems in interstate custody disputes, 60 because the NCCUSL is an
organization commissioned by state governments, states were not mandated
to enact the UCCJA as written. 61 Thus, although all fifty states eventually
adopted some form of the UCCJA, they did so while making major
modifications, resulting in a situation where custody decrees were still not
being given full faith and credit by other state courts. 62 Also, state courts
would often interpret identical provisions differently from other states,
putting the so-called uniform statute far from a uniform application. 63 To
remedy this problem, Congress stepped in and enacted the Parental
Kidnapping Prevention Act (PKPA) in 1980 in order to help develop
national standards for child custody jurisdiction. 64 In crafting the
legislation, Congress found that the inconsistent and conflicting state laws
regarding jurisdiction over custody disputes resulted in the failure of the
courts of [various] jurisdictions to give full faith and credit to the judicial
proceedings of . . . other jurisdictions, the deprivation of rights of liberty
and property without due process of law, . . . and harm to the welfare of
children and their parents[.] 65
The PKPA applies the concepts of full faith and credit to custody
judgments and requires that child custody determinations made in one state
be enforced by all other states, provided that the state making the
determination had original jurisdiction to do so under the Act. 66 The federal
policy implicit in the PKPA, allowing only one state to assert child custody
jurisdiction at a time, has been recognized by Massachusetts courts. 67 A

60. Goelman, supra note 5, at 118.

61. See The National Conference of Commissioners on Uniform State Laws, About
NCCUSL, http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=0&tabid=9 (last
visited Dec. 1, 2008).
62. Zorza, supra note 8, at 911-12.
63. Russell M. Coombs, Nuts and Bolts of the PKPA, 22 COLO. LAW. 2397, 2397
(1993).
64. See Parental Kidnapping Prevention Act, 28 U.S.C. 1738A (1980); Thompson v.
Thompson, 484 U.S. 174, 181 (1988).
65. Parental Kidnapping Prevention Act of 1980, Pub. L. No. 96-611, 7(a)(4), 94 Stat.
3569 (1980).
66. 28 U.S.C. 1738A(a); Thompson, 484 U.S. at 181 ([T]he principal problem
Congress was seeking to remedy was the inapplicability of full faith and credit requirements
to custody determinations.).
67. See generally Delk v. Gonzalez, 658 N.E.2d 681 (Mass. 1995); Hillier v. Hillier, 671
146 NEW ENGLAND LAW REVIEW [Vol. 43:135

Massachusetts custody determination does not violate the PKPA so long as

the Massachusetts court, using the MCCJA in light of the PKPAs new
provisions, determines it has original jurisdiction and satisfies the
requirements of federal law.

2. PKPA Emergency Jurisdiction

As originally enacted, the emergency jurisdiction provision of the
PKPA stated that a state court may take jurisdiction if the child was
physically present in the state and it was necessary to protect the child
because the child had been subjected to or threatened with mistreatment or
abuse. 68 However, the Violence Against Women Act (VAWA), passed in
2000 to expand the PKPAs emergency jurisdiction, now allows a court to
take jurisdiction if the child is physically present in such State and (i) the
child has been abandoned, or (ii) it is necessary in an emergency to protect
the child because the child, a sibling, or parent of the child has been
subjected to or threatened with mistreatment or abuse. 69 Clearly, the
amended language of the PKPA significantly increases the level to which a
court may look at domestic violence issues when making an emergency
custody determination as compared to the UCCJA which, as previously
mentioned, limits jurisdiction to situations when the child . . . has been
subjected to or threatened with mistreatment or abuse. 70
As federal law, the PKPA preempts contrary state law and resolves
jurisdictional statutes in different states. 71 Under the mandates of full faith
and credit, the PKPA requires a state to enforce an order issued by another
state based on a domestic violence emergency; however, the PKPA does
not amend state law. 72 Despite a legislative history which indicates that
Congress wanted to protect victims of domestic violence by expanding this
emergency jurisdiction statute, most state courts are either unaware of the

N.E.2d 520 (Mass. App. Ct. 1996).

68. 28 U.S.C. 1738A(c)(2)(C)(ii) (1980) (amended 2000) (emphasis added).
69. 28 U.S.C. 1738A(c)(2)(C) (2000) (emphasis added).
70. UNIF. CHILD CUSTODY JURISDICTION ACT 3(a)(3), 9 U.L.A. 261 (1968) (emphasis
added).
71. See Linda M. DeMelis, Note, Interstate Child Custody and the Parental Kidnapping
Prevention Act: The Continuing Search for a National Standard, 45 HASTINGS L.J. 1329,
1340 (1994). The Preemption Clause of the U.S. Constitution states: This Constitution, and
the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. CONST. art.
VI, cl. 2. The Supremacy Clause of Art. VI of the [Federal] Constitution provides Congress
with the power to pre-empt state law. La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368
(1986).
72. See 28 U.S.C. 1738A(a) (2000).
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 147

expansion or choose not to exercise emergency jurisdiction in domestic

violence circumstances where the child was not also a victim to the
violence. 73
Significant to this Note are two holdings from Massachusetts courts
on the relationship between the PKPA and the MCCJA. In Archambault v.
Archambault, the Supreme Judicial Court of Massachusetts (SJC) noted
that since domestic relations have traditionally been the exclusive province
of state law, any federal statute regulating a domestic relations issue is
presumed not to preempt state law unless accompanied with explicit
congressional authorization. 74 As such, the SJC found no clear and explicit
language within the PKPA to indicate any congressional intent for
preemption. 75 However, even though Congress did not expressly preempt
Massachusetts law, to the extent that the MCCJA frustrat[es] and
ero[des] . . . the congressional policy embodied in the federal [law] the
MCCJA must necessarily be preempted. 76 In light of this, the SJC found
Section 11(b) of the MCCJA preempted by the PKPA, thus
unconstitutional, since execution of the provision would frustrate the
federal policy of promoting comity among the states in child custody
matters. 77
In Protection of Vivian, the Massachusetts Court held that an award of
temporary custody to a state in a non-emergency care and protection
proceeding would frustrate the policy of the PKPA when there is a custody
proceeding pending in a state with proper jurisdiction. 78 Thus, the SJC held
once again, that the PKPA preempts care and protection proceedings. 79

73. Goelman, supra note 5, at 146-47.

74. Archambault v. Archambault, 555 N.E.2d 201, 205 (Mass. 1990). The Supreme
Court has reiterated on numerous occasions that federal law should not preempt state law in
matters of family relations as [t]he whole subject of the domestic relations of husband and
wife . . . belongs to the laws of the States and not to the laws of the United States. Rose v.
Rose, 481 U.S. 619, 625 (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)) (alteration in
original).
75. See Archambault, 555 N.E.2d at 207.
76. Id. at 208 (quoting Ridgway v. Ridgway, 454 U.S. 46, 54 (1981)) (third alteration in
original).
77. See id. at 204. Section 11(b) gave courts in Massachusetts the discretion to order
persons in the state to appear in custody proceedings being held in a court of another state.
Id. The problem Archambault focused on was the 1987 amendment to Section 11(b) which
stated: [N]o child shall be ordered or compelled to . . . attend such proceeding in another
state when . . . there is probable cause to believe that such child may be placed in jeopardy
or exposed to risk of mental or physical harm by such return to said other state. MASS.
GEN. LAWS ch. 209B, 11(b) (1987).
78. See Care and Prot. of Vivian, 652 N.E.2d 616, 619 (Mass. 1995).
79. See id.
148 NEW ENGLAND LAW REVIEW [Vol. 43:135

Because another state had already issued a temporary custody order

consistent with the requirements of the PKPA, the SJC held that
Massachusetts was required, under the terms of the PKPA, to enforce that
states order and was prohibited from modifying it. 80 However, the Court
indicated in dicta that this holding does not apply when there is a problem
of the character described in the PKPA, 28 U.S.C. 1738A(c)(1)(C): the
child has been abandoned or it is necessary in an emergency to protect the
child because he has been subjected to or threatened with mistreatment or
abuse. 81
These two holdings are significant because when Massachusetts is the
second court to be called upon to adjudicate an interstate child custody
disputeas in an emergency jurisdiction case where typically the abused
parent flees to another state with the child after a custody order has already
been madeit must also satisfy the jurisdictional demands of the PKPA. 82
Thus, potential conflicts over using the MCCJAs limited definition of
emergency jurisdiction rather than the expanded PKPAs definition could
arise as Massachusetts law could frustrate the policy behind the PKPA. 83
Although the Court indicated in dicta that in such a situation the PKPA
would not preempt MCCJAs emergency jurisdiction, 84 it seems likely that
the MCCJAs child only emergency provision would indeed frustrate the
general policies behind the amended PKPA of promoting protection for
domestic violence victims. 85

III. The Uniform Child Custody Jurisdiction Enforcement Act

A. Background of the UCCJEA

While the motivation behind the UCCJAcreating uniformity among
child custody lawswas a good idea in theory, in reality the model statute
did not have the effect of unifying state custody laws as well as was
hoped. 86 Also, with the passage of the PKPA and VAWA, several
discrepancies arose between the federal and state laws that led to more
confusion. 87 Thus, another call was made to update the uniform custody

80. See id. at 617-18.

81. Id. at 619 n.5 (internal citations omitted).
82. See id. at 619.
83. See infra Part IV.
84. See Care and Prot. of Vivian, 652 N.E.2d at 619 n.5.
85. See infra Part IV.A.2.
86. See Palesch, supra note 56, at 1054-56 (discussing the problems with the UCCJA
which eventually led to the development of the UCCJEA).
87. See Goelman, supra note 5, at 130.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 149

law to fill in significant loopholes and deficiencies. 88 As such, the

NCCUSL passed the UCCJEA in 1997. Currently, forty-six states, the
District of Columbia, and the U.S. Virgin Islands have all enacted the
UCCJEA. 89
A significant difference between the UCCJEA and the UCCJA, and
the difference most relevant to this Note, is that the former was purposely
formulated with domestic violence matters in mind, due in large part to
domestic violence advocacy groups who actually helped draft the Act. 90 It
was noted that [w]hile the NCCUSL continued to ignore the problems of
domestic violence for anyone except those involving the particular child,
domestic violence advocates forced the Commissioners to make a number
of concessions in its final version to include some protections for victims of
domestic violence. 91 Specifically, [a]dvocates for domestic violence
victims raised real apprehension that victims who have been forced to flee
the state for safety reasons should not be brought back to defend against
repeated child custody litigation. 92

B. UCCJEA Emergency Jurisdiction

One major consideration for the drafters of the UCCJEA was a need
to revise the emergency provisions of the UCCJA because of several
problems that had developed. 93 For example, the language of the UCCJA
does not specify that emergency jurisdiction may be exercised only to
protect the child on a temporary basis until the court with appropriate

88. See Klein et al., supra note 4, at 113.

89. See The National Conference of Commissioners on Uniform State Laws: A Few
Facts About the Uniform Child Custody Jurisdiction & Enforcement Act,
http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-uccjea.asp (last visited
Dec. 1, 2008). Currently, Massachusetts, Missouri, New Hampshire, and Vermont have not
adopted the UCCJEA. See id. However, since the beginning of 2008, the state legislatures in
Massachusetts, Missouri, and New Hampshire have all introduced bills proposing the
adoption of the UCCJEA. Id.
90. Goelman, supra note 5, at 130.
91. Zorza, supra note 8, at 914. Aside from revising the UCCJAs emergency
jurisdiction provision, the UCCJEAs drafters also sought to improve the UCCJA by
prioritizing the types of custody jurisdiction, adding in mechanisms that indicate how the
provisions of the act may actually be enforced, and including a full faith and credit clause.
See Palesch, supra note 56, at 1054.
92. Fern L. Frolin, Uniform Child Custody Jurisdiction Enforcement Act: A Better Child
Custody Jurisdiction Law for Massachusetts, 6 SEC. REV. MASS. B. ASSN 1, 18 (2004),
available at http://www.massbar.org/media/35947/sr_v6n3.pdf.
93. See Prefatory Note to UNIF. CHILD CUSTODY JURISDICTION ENFORCEMENT ACT, 9
U.L.A.676,(1997), available at http://www.law.upenn.edu/bll/archives/ulc/uccjea/
final1997act.htm.
150 NEW ENGLAND LAW REVIEW [Vol. 43:135

jurisdiction issues a permanent order. 94 The drafters noted that confusion

existed throughout the states on what constituted an emergency because the
UCCJAs emergency jurisdiction provision does not explicitly refer to
violence towards the parent or sibling of the child in question. 95 Thus, the
UCCJEAs emergency jurisdiction provision was rewritten as: A court of
this State has temporary emergency jurisdiction if the child is present in
this State and the child has been abandoned or it is necessary in an
emergency to protect the child because the child, or a sibling or parent of
the child, is subjected to or threatened with mistreatment or abuse. 96
The emergency provision of the UCCJEA is an extraordinary measure
for domestic violence victims primarily because it allows a court to take
jurisdiction when an abused parent leaves the state to escape from her
batterer or when only one of her children is being abused. 97 This new
expansive provision permits courts to exercise emergency jurisdiction
when an abused parent flees across state lines and seeks legal relief. 98
Also, the language is clear in that it tells both courts that safety of the
parties and child is the first consideration. 99 Finally, the UCCJEAs
emergency jurisdiction provision states that courts cannot use the fact that
a parent unilaterally took the children while escaping from abuse as
grounds for refusing to hear a case based on interstate flight by a parent
fleeing from domestic violence. 100 With such extraordinary benefits for
both victims of domestic violence and the children who witness such
violence, it seems illogical that a state, as Massachusetts in this instance,
would choose not to adopt the UCCJEA when given the opportunity. 101

94. Id.
95. Id.
96. Id. 204(a) (emphasis added).
97. Zorza, supra note 8, at 918. While the UCCJEAs emergency jurisdiction provision
is generally seen as a remarkable improvement over the UCCJA, some commentators still
find deficiencies with the updated provision. For example, the UCCJEAs emergency
jurisdiction provision still places battered spouses at the discretion of a judge to make a
determination as to whether a true emergency exists. Id. Also, the provisions lack a
definition for the term sibling, thus leaving ambiguity for a battered parent if the child that
the parent seeks to protect is a foster child, half-sibling, step-sibling, or not related at all. Id.
at 919. However, while the UCCJEAs emergency jurisdiction is not perfect in all respects,
it still represents the best available option for state legislatures to adopt and allows states the
ability to modify the act to provide even greater protection for domestic violence victims.
See infra Part IV.
98. Goelman, supra note 5, at 132. Since many states already expanded their emergency
jurisdiction provisions to include domestic violence victims through case law, the UCCJEA
was thought of as simply institutionaliz[ing] the growing trend. Id.
99. Zorza, supra note 8, at 918; see infra Part IV.
100. JAFFE ET AL., supra note 3, at 64.
101. In 2005, a bill was proposed into the Massachusetts legislature calling for adoption
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 151

IV. Argument Advocating the Adoption of the Adoption of the

UCCJEAs Emergency Jurisdiction Provision in Massachusetts
The UCCJEAs emergency jurisdiction provision is a more expansive
and extraordinarily better statute because it allows a court to take
jurisdiction when the parent of a child or another sibling of the child is
being abused. 102 Massachusettss interstate child custody statute, however,
limits jurisdiction to when the child in the custody dispute is being abused
or neglected. 103 Recently, a bill has been introduced into the Massachusetts
legislature that would require the Commonwealth to adopt the UCCJEA as
its main child custody jurisdiction statute. 104 Specifically, this bill includes
a proposal for the adoption of the UCCJEAs emergency jurisdiction
provision, which would allow a Massachusetts court to take jurisdiction
when the child is present in this State and the child has been abandoned or
it is necessary in an emergency to protect the child because the child, or a
sibling or parent of the child, is subjected to or threatened with
mistreatment or abuse. 105
In light of the UCCJEAs improved emergency jurisdictional
provisions, the Massachusetts legislature should immediately adopt and
implement this language into state law for several reasons. First, the
UCCJEAs emergency jurisdiction provision provides greater protection to
victims of domestic violence. 106 Since the UCCJEA expands the focus of
abuse to include a parent of the child, the statute in effect takes into
consideration the dynamics of domestic violence and its detrimental effects
on individuals and families as a whole. 107 Second, adoption of the
UCCJEAs emergency jurisdiction provision will provide even greater
protection to the children of battling parents in two ways. The new
provision will expand coverage to siblings, who may not be at issue in that

of the UCCJEA, but failed to become law. See S. 872, 184th Gen. Court, Reg. Sess. (Mass.
2005) (presented by Sen. Robert S. Creedon), available at http://www.mass.gov/legis/
184history/s00872.htm. Presently, a similar bill mandating the adoption of the entire
UCCJEA has again been introduced in the Massachusetts House of Representatives. See
H.R. 1657, 185th Gen. Court, Reg. Sess. (Mass. 2007) (presented by Rep. Eugene L.
O'Flaherty), available at http://www.mass.gov/legis/bills/house/185/ht01pdf/ht01657.pdf.
102. UNIF. CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT 204(a), 9 U.L.A. 676
(1997); see supra Part III.B.
103. MASS. GEN. LAWS ch. 209B, 2(a)(3) (2006).
104. See H.R. 1657, 185th Gen. Court, Reg. Sess. (Mass. 2007) (presented by Rep.
Eugene L. O'Flaherty), available at http://www.mass.gov/legis/bills/house/185/ht01pdf/ht
01657.pdf.
105. Id. (emphasis added).
106. See Zorza, supra note 8, at 918; see also infra Part IV.A.
107. See infra Part IV.A.
152 NEW ENGLAND LAW REVIEW [Vol. 43:135

particular custody dispute, but who are being abused by a parent. 108 Also,
by allowing a state court to take jurisdiction when a parent is being abused,
the UCCJEA protects children from the dangerous physical and
psychological effects of witnessing abuse in their home. 109 Third, adoption
of the UCCJEA will help provide national uniformity to child custody
jurisdictional laws. 110 Since Massachusetts remains one of four states who
have yet to enact the UCCJEA, adoption of the uniform law is necessary to
provide security and stability for all citizens throughout the nation. 111
Finally, adoption of the UCCJEAs emergency jurisdiction provisions in
Massachusetts would support a public policy which places individual safety
and welfare, as well as an awareness of the domestic violence epidemic, far
above hyper-technical procedural rules and regulations. 112

A. The UCCJEA Provides Greater Protection to Domestic

Violence Victims

1. Domestic Violence in Massachusetts

The main reason why Massachusetts should adopt the emergency
jurisdiction provisions of the UCCJEA is to provide greater protection to
victims of domestic violence by recognizing the devastating effects such
violence has on individuals and the family as a whole. Domestic violence is
a serious epidemic from which Massachusetts is not immune. 113 It is
impossible to find entirely accurate numbers of the level of domestic
violence that occurs within Massachusetts because the vast majority of
cases go unreported. 114 Some statistics indicate that in 2003, over 3,900
women and children retreated to a domestic violence shelter or home in
Massachusetts and more than 40,000 restraining orders for domestic

108. See infra Part IV.B.

109. See Suzanne A. Kim, Reconstructing Family Privacy, 57 HASTINGS L.J. 557, 561-62
(2006); see also infra Part IV.B.
110. See infra Part IV.C.
111. The National Conference of Commissioners on Uniform State Laws: A Few Facts
About the Uniform Child Custody Jurisdiction and Enforcement Act, http://www.nccusl.
org/Update/uniformact_factsheets/uniformacts-fs-uccjea.asp (last visited Dec. 1, 2008); see
infra Part IV.C.
112. See infra Part IV.D.
113. See JARRETT T. BARRIOS, DOMESTIC VIOLENCE IN MASSACHUSETTS: PROVIDING
TOOLS TO PROTECT VICTIMS 6 (2006), http://senatorbarrios.org/dvreport.pdf.
114. See Kathryn E. Litchman, Punishing the Protectors: The Illinois Domestic Violence
Act Remedy for Victims of Domestic Violence Against Police Misconduct, 38 LOY. U. CHI.
L.J. 765, 772-73 (2007).
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 153

violence were issued. 115 Also, Massachusetts had a fifty percent increase in
domestic violence homicides, resulting in twenty-one deaths, five of which
were children. 116 These statistics help color the picture of the vastness of
domestic violence within the Commonwealth and indicate the seriousness
that can result when the subject is overlooked in the development and
implementation of family law.
But what exactly is domestic violence? While many definitions exist,
domestic violence can generally be characterized as a pattern of behavior
that one intimate partner or spouse exerts over another as a means of
control . . . . [It] may include physical violence, coercion, threats,
intimidation, isolation, and emotional, sexual, or economic abuse. 117 An
individual who has been subjected to domestic violence typically has initial
psychological effects like shock, denial, withdrawal, confusion, numbing,
fear, and depression. 118 Also, many victims will experience serious long-
term effects such as fear, anxiety, fatigue, sleeping and eating disorders,
and feelings of loss, betrayal, or hopelessness. 119 Most experts agree that
this type of family violence is best described as a cycle of power and
control. 120 A typical example of this struggle for control and power is when
perpetrators invent complex rules about what victims or the children can
or cannot do, and force victims to abide by these frequently changing

115. The Massachusetts Coalition Against Sexual Assault and Domestic Violence,
Research and Statistics, http://www.janedoe.org/know/stats.htm (last visited Dec. 1, 2008).
Massachusetts defines abuse as the following:
Abuse, the occurrence of one or more of the following acts between
family or household members:
(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force,
threat or duress.
MASS. GEN. LAWS ch. 209A, 1 (2006) (emphasis added).
116. The Massachusetts Coalition Against Sexual Assault and Domestic Violence,
Research and Statistics, http://www.janedoe.org/know/stats.htm (last visited Dec. 1, 2008).
117. Goelman, supra note 5, at 106.
118. LOUE, supra note 1, at 16.
119. Id. (citation omitted).
120. See Goelman, supra note 5, at 107. The cycle [of violence] . . . is said to include a
period of tension building followed by battering. The batterer may express remorse, and a
period of relative calm ensues. The cycle is reactivated after a period when tensions increase
or stresses resurface. Glenda Kaufman Kantor & Jana L. Jasinski, Dynamics and Risk
Factors in Partner Violence, in PARTNER VIOLENCE: A COMPREHENSIVE REVIEW OF 20
YEARS OF RESEARCH 1, 3 (Jana L. Jasinski & Linda M. Williams eds., 1998).
154 NEW ENGLAND LAW REVIEW [Vol. 43:135

rules. 121

2. The UCCJEAs Protection of Domestic Violence Victims

Until the 1970s, spousal abuse [was] an aspect of family life that was
largely ignored by the public . . . . 122 With this in mind, it is not surprising
that the MCCJA, which was modeled after the 1963 version of the UCCJA,
failed to consider domestic violence in its emergency jurisdiction
provision. 123 However, the UCCJEA, which was not developed until 1997,
substantially differs from the MCCJA in the respect that it grants a court
the power to take emergency jurisdiction in situations where only a parent
of the child is being subjected to mistreatment or abuse. 124 The inclusion of
this language was not accidental. Instead, the expansion to include
domestic violence situations was successfully pushed for by several
domestic violence awareness groups. 125
As previously mentioned, domestic violence has devastating effects
on the victim of the abuse. 126 What is significant for child custody
jurisdiction law, however, is a victims choice in leaving an abusive
situation. Many victims, determined to put an end to their ex-partners
continuous attempts to maintain control over their lives, decide to flee with
their children to a confidential out-of-state location to truly regain safety
and autonomy. 127 Domestic violence victims may choose a safe haven in
another geographic location for many different reasons. 128 For example,
victims will go to another state where they have friends or family who can
provide a safe home environment for them and their children. 129 This
network of family and friends can help the victim prevent a reoccurring
violent episode from his or her former batterer. 130 Thus, the victims choice
in fleeing the state where his or her abuser resides provides an opportunity
for the victim and his or her children to live in a safe, caring, supportive,
and familiar environment while [the victim] is healing from the physical

121. Goelman, supra note 5, at 106-07.

122. Nancy R. Rhodes, The Assessment of Spousal Abuse: An Alternative to the Conflict
Tactics Scale, in INTIMATE VIOLENCE: INTERDISCIPLINARY PERSPECTIVES 27, 27 (Emilio C.
Viano ed., 1992).
123. See MASS. GEN. LAWS ch. 209B, 2(a)(3) (2006).
124. See UNIF. CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT 204(a), 9 U.L.A.
676 (1997).
125. See Goelman, supra note 5, at 130.
126. See LOUE, supra note 1, at 16.
127. Klein et al., supra note 4, at 110.
128. Goelman, supra note 5, at 109.
129. Id.
130. Id.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 155

and psychological injuries resulting from the abuse. 131

While the decision to flee in many cases allows the victim a chance at
survival, the MCCJA currently puts an obstacle in the way for the victim to
take control of his or her safety. 132 For example, child custody litigation
frequently becomes the perpetrators most effective weapon when
attempting to continue to harass the victim after his or her decision to
leave. 133 Also, the most dangerous time for a victim of domestic violence is
when he or she leaves his or her abuser. 134 During this period the battering
partner is more likely to be violent towards the victim who is attempting to
leave. 135 Thus, [t]he determination that a particular state . . . has
jurisdiction over a child custody case has enormous ramifications for the
safety of a domestic violence survivor. 136 Namely, if a domestic violence
victim has left a state out of fear for his or her own safety but is not allowed
to file an emergency child custody hearing in that new state, [the victim]
may face a Hobbesian choice of endangering her own safety or giving up
her right to fight for custody of the children. 137
In light of these considerations, the UCCJEA is a far superior child
custody jurisdictional statute than the MCCJA. Under the UCCJEA,
courts that are making child-custody determinations are encouraged to
look at domestic and family violence to protect the rest of the family from
an abuser. . . . 138 By refusing to accept emergency jurisdiction in a child
custody dispute when the parent alone is being abused, the MCCJA forces
the victim to go back into the state he or she originally fled. In that respect,
the MCCJA further victimizes the victim by placing huge obstacles
between the battered parent and his or her safety. Because of the high level
of risk involved in these situations and the high risk of continued violence
upon reentering the state of the abuser, adoption of the UCCJEA in
Massachusetts would recognize these dangerous obstacles that could

131. Klein et al., supra note 4, at 110.

132. See, e.g., id. (While the decision to flee a pattern of abuse and regain physical,
emotional, and economic autonomy in a location unknown to the abuser may appear to be in
the best interest of the survivor . . . many survivors . . . may be surprised to learn of the
severe legal consequences that may arise.).
133. Goelman, supra note 5, at 107.
134. See BANCORFT & SILVERMAN, supra note 4, at 99 (observing that when victims leave
their abusive spouses, they experience nearly four times as many instances of assault as
those victims who remain with their abusers).
135. Id.; see also Goelman, supra note 5, at 107 (explaining that victims who leave their
abusers may be more at risk for physical violence, as batterers often use further abuse as a
means to reassert control or to retaliate).
136. Goelman, supra note 5, at 115.
137. Id.
138. Zorza, supra note 8, at 934.
156 NEW ENGLAND LAW REVIEW [Vol. 43:135

possibly mean the difference between life or death.

B. The UCCJEA Provides Even Greater Protection to Children.

Another reason why Massachusetts should adopt the emergency
jurisdiction provision of the UCCJEA is to provide even greater protection
to children involved in bitterly contested custody disputes. While the
MCCJA already allows emergency jurisdiction to protect the child from
abuse or neglect, 139 the UCCJEAs expanded provision allows jurisdiction
to protect the child because the child, or a sibling or parent of the child, is
subjected to or threatened with mistreatment or abuse. 140 By adopting a
scheme where a court may consider sibling and parental abuse as part of
the emergency jurisdiction guidelines, Massachusetts would acknowledge
the consequences such abuse has on children.

1. Children Witnessing Violence is a Form of Child Abuse

Itself.
In Massachusetts, approximately 43,000 children a year are exposed
to reported acts of abuse between family members, and approximately
forty-three percent of female victims of domestic violence live in
households that have children under the age of twelve. 141 In most situations
where victims of domestic violence flee their abusers, they take their
children with them. 142 Yearly statistics from battered womens shelters
show that the majority of residents in these shelters are children. 143
Domestic violence is often described as unseen because it usually occurs
in the privacy of a home. But violent homes often include children, and
these children do see the violence. 144 As one author notes:
Children hear their parents, the adults they love and depend on,
screaming in anger, pleading in fear, and sobbing in pain. They
hear fists hitting bodies, objects thrown and shattered, and people
thrown against walls and knocked to floors. They may see blood,

139. MASS. GEN. LAWS ch. 209B, 2(a)(3) (2006) (emphasis added).
140. UNIF. CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT 204(a), 9 U.L.A. 676
(1997) (emphasis added).
141. Jane Doe Inc. Voices for Change, Massachusetts Children and Domestic Violence,
http://www.janedoe.org/know/stats_children.htm (last visited Dec. 1, 2008).
142. Jeffrey L. Edleson, Studying the Co-Occurrence of Child Maltreatment and
Domestic Violence in Families, in DOMESTIC VIOLENCE IN THE LIVES OF CHILDREN: THE
FUTURE OF RESEARCH, INTERVENTION, AND SOCIAL POLICY 91, 91 (Sandra A. Graham-
Bermann & Jeffrey L. Edleson eds., 2001).
143. Id.
144. Janis Wolak & David Finkelhor, Children Exposed to Partner Violence, in PARTNER
VIOLENCE: A COMPREHENSIVE REVIEW OF 20 YEARS OF RESEARCH, supra note 120, at 73.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 157

bruises, and weapons. Some children witness domestic rapes and

even murder. 145
The traditional belief was that children were only in any real danger
or harm when they were physically abused. 146 However, as scientific
studies and research have become more sophisticated and intensified in
recent years, this notion has changed dramatically. 147 Most scientists and
psychologists now agree that family violence, specifically interparental or
intimate partner violence, is a problem of great magnitude that can
significantly impact the short- and long-term development of children who
are exposed to such violence. . . . 148 Children who witness family violence
can display effects just as serious as if the child was abused himself. 149
Thus, it is arguable that to allow a child to be a witness to family violence
is a form of child abuse in itself.
When a child observes violence in the home, it is almost impossible
to be removed from it or unaffected by it. 150 Studies show repeatedly how
trauma to children and to mothers are linked and how their well-being is
interdependent. 151 Specifically, the majority of research indicates that
children who live in a home with domestic violence exhibit both external
and internal behavioral problems. 152 For example, children in this situation
tend to exhibit externalizing behavioral problems like aggression,
noncompliance, disruptiveness, and antisocial behavior. 153 These children
can be more aggressive towards their peers and siblings, and have more of

145. Id.
146. See JAFFE ET AL., supra note 3, at 21.
147. See id.
148. Robert A. Geffner et al., Children Exposed to Interparental Violence: A Need for
Additional Research and Validated Treatment Programs, in THE EFFECTS OF INTIMATE
PARTNER VIOLENCE ON CHILDREN 1, 1 (Robert A. Geffner et al. eds., 2003). The level and
nature of the emotional abuse of a mother by a batterer is an important factor in childrens
level of distress and is a strong predictor of childrens social behavior and adjustment
problems. BANCROFT & SILVERMAN, supra note 4, at 38 (citation omitted).
149. BANCROFT & SILVERMAN, supra note 4, at 47.
150. See Philip G. Ney, Transgenerational Triangles of Abuse: A Model of Family
Violence, in INTIMATE VIOLENCE: INTERDISCIPLINARY PERSPECTIVES 15, 19 (Emilio C. Viano
ed., 1992).
151. Jeffrey L. Edleson, Studying the Co-Occurrence of Child Maltreatment and
Domestic Violence in Families, in DOMESTIC VIOLENCE IN THE LIVES OF CHILDREN: THE
FUTURE OF RESEARCH, INTERVENTION, AND SOCIAL POLICY, supra note 142, at 91.
152. Judee E. Onyskiw, Domestic Violence and Childrens Adjustment: A Review of
Research, in THE EFFECTS OF INTIMATE PARTNER VIOLENCE ON CHILDREN, supra note 142, at
127-28.
153. Id.
158 NEW ENGLAND LAW REVIEW [Vol. 43:135

a tendency to get into fights. 154 Also, academic development typically

becomes stunted. 155 Children who witness domestic violence in their
homes also exhibit internalizing behavior like anxiety, depression, low self-
esteem, and fearfulness. 156 These internalizing behaviors result because
the children have a lot of internal tension, with no effective way of
addressing the problem, expressing their feelings, or seeking help. 157
Further, studies indicate that children who witness abuse are likely to
grow up to either become abusers themselves or become victims in their
own abusive relationships. Children who witness domestic violence show
signs of learning to meet their needs by manipulating, pressuring, and
coercing others. 158 Specifically, exposure to domestic violence will
significantly increase the likelihood that boys will abuse their own partners
as adults, since boys tend to identify more with their battering parent. 159
Girls who witness domestic violence, however, are likely to be victims of
domestic violence in their own adult relationships as their childhood
experiences form their images of acceptable male behavior from
observing the batterer and therefore [girls] may not believe that nonviolent
or respectful men exist. 160
Analyzing the information above, it is obvious that even if a parent is
not physically harming a child, a child who witnesses domestic violence
can become equivalently damaged as it significantly increases the
likelihood of that child developing psychological or emotional problems in
adolescence and adulthood. Currently, Massachusetts courts agree that a
child exposed to serious domestic violence in the home has suffered

154. JAFFE ET AL., supra note 3, at 23. [T]he increased rate of assaultiveness to
nonfamily members is particularly marked among boys. BANCROFT & SILVERMAN, supra
note 4, at 38. One man who witnessed domestic violence during his childhood described
how it affected him while in his youth:
All through my childhood, I was very rough. I would beat up on my
younger brother and my older brother would beat up on me. One time in
the seventh grade I got into a fight with a kid at school. I remember
being scared of him because he was kind of a bully, but I couldnt back
down . . . . I remember feeling very powerful . . . . Also, to have beaten
up this kid who I perceived to be so tough felt good.
LOUE, supra note 1, at 153.
155. See JAFFE ET AL., supra note 3, at 23.
156. Judee E. Onyskiw, Domestic Violence and Childrens Adjustment: A Review of
Research, in THE EFFECTS OF INTIMATE PARTNER VIOLENCE ON CHILDREN, supra note 148, at
128.
157. JAFFE ET AL., supra note 3, at 23.
158. BANCROFT & SILVERMAN, supra note 4, at 47.
159. Id. at 48.
160. Id.; see also LOUE, supra note 1, at 153.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 159

significant harm . . . . 161 The Supreme Judicial Court recognizes the

effects of family violence on children support conclusions that (1) batterers
are more likely to abuse their children than the average parent, [and] (2)
children exposed to domestic violence suffer both behavioral and
developmental harm . . . . 162 In light of this, the UCCJEAs emergency
jurisdiction provision, which allows courts to issue temporary custody
orders when a parent is being abused, takes into consideration the real
consequences that result when a child witnesses parental abuse, thus
furthering a Massachusetts policy already acknowledged by its courts.

2. Abused Siblings Are Afforded Greater Protection Under

the UCCJEA.
The UCCJEAs emergency jurisdiction provision also expands
coverage to situations where siblings who may not be at issue in a
particular custody dispute are abused by a parent, thus affording even
greater family protection against violence. 163 Studies have shown that
children who live in a home where physical violence between parents is
occurring are . . . more likely to be at increased risk for physical abuse
themselves . . . . 164 This is supported by the fact that between 60 to 75
percent of households in which a woman is battered, a child is also
battered. 165 Domestic violence perpetrators typically use the children to
manipulate victims[] by harming or abducting the children . . . . 166
Children are also at risk for physical injury if they try to help their abused
parent during a violent attack. 167 Thus, even if the circumstances of a
particular situation are such that only one child of the couple is involved in
the current custody dispute, abuse of the other children in the household is
still an important consideration. Since the dynamic of domestic violence
typically evolves from abuse of a parent to abuse of a child, the UCCJEAs
expanded definition providing protection for all children in a household is a
remarkable improvement over the current MCCJA. 168

161. Sher v. Desmond, 874 N.E.2d 408, 417-18 (Mass. App. Ct. 2007).
162. Opinion of the Justices to the Senate, 691 N.E.2d 911, 917 n.5 (Mass. 1998)
(internal citations omitted).
163. See UNIF. CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT 204(a), 9 U.L.A.
676 (1997).
164. Robert A. Geffner et al., Children Exposed to Interparental Violence: A Need for
Additional Research and Validated Treatment Programs, in THE EFFECTS OF INTIMATE
PARTNER VIOLENCE ON CHILDREN, supra note 148, at 2 (citation omitted).
165. LOUE, supra note 1, at 148.
166. Goelman, supra note 5, at 106.
167. Id. at 108.
168. Compare UNIF. CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT 204(a),
160 NEW ENGLAND LAW REVIEW [Vol. 43:135

C. Adoption of the UCCJEA Would Provide National Uniformity

in Child Custody Jurisdictional Rules.
As previously mentioned, before 1968, states were not required to
give full faith and credit to another states child custody order. 169
Understandably, this lack of recognition for any finality of a child custody
decree led to a series of problems in enforcement. For example, it was not
at all unusual to have the non-custodial parent kidnap their child to cross
state borders in hopes of obtaining a more favorable order from a different
state court. 170 In those situations, most states would hear the case on the
merits again and then issue a new order without giving any deference to the
prior custody arrangement. 171 Amidst this confusing backdrop, there was a
call for uniformity in how state courts handled child custody jurisdictional
issues. 172
As simply good policy, a need for a coherent national system related
to child custody is imperative in our greatly mobile society. Currently,
forty-six states, the District of Columbia, and the U.S. Virgin Islands have
all enacted some form of the UCCJEA. 173 Massachusetts, Missouri, New
Hampshire, and Vermont are the only states who have not yet adopted the
UCCJEA. 174 However, since the start of 2008, the state legislatures in
Massachusetts, Missouri, and New Hampshire have all introduced bills
proposing the adoption of the UCCJEA. 175 Thus, in order to help national
uniformity in child custody laws and to prevent a pre-1960s disaster from
reoccurring, Massachusetts should immediately adopt the provisions of the
UCCJEA that have already been found to be both workable and more
agreeable by the overwhelming majority of states.

D. The UCCJEA Supports Better State Policy.

Above all, a survivor will need to evaluate what will best keep
her and her children safe. A survivor is best equipped to assess

with MASS. GEN. LAWS ch. 209B, 2(a)(3) (2006).

169. See, e.g., Halvey v. Halvey, 330 U.S. 610, 612-14 (1947).
170. See The Uniform Law Commission, Summary, Uniform Child Custody Jurisdiction
and Enforcement Act, http://www.nccusl.org/Update/uniformact_summaries/uniformacts-s-
uccjaea.asp (last visited Dec. 1, 2008).
171. Id.
172. See Klein et al., supra note 4, at 114.
173. See The Uniform Law Commission, Summary, Uniform Child Custody Jurisdiction
and Enforcement Act, http://www.nccusl.org/Update/uniformact_summaries/uniformacts-s-
uccjaea.asp (last visited Dec. 1, 2008).
174. See id.
175. Id.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 161

her own safety when considering how her abusive partner may
retaliate. If she fears that her abuser will harm or kill her or their
children, and is convinced that no intervention by the legal
system will prevent him from retaliating, this must guide her
decision-making. 176
Massachusetts must weigh its priorities when assessing the proposed
legislative bill requesting immediate adoption of the UCCJEA. It seems a
simple matter of good public policy for the Commonwealth to make its first
priority the protection of its citizens, both parents and children, and not to
blindly follow hyper-technical procedural requirements of jurisdiction. The
emergency jurisdiction provision of the UCCJEA is clear in that it tells
both courts that the safety of the parties and child is the first
consideration. 177 By adopting the emergency jurisdiction provisions of the
UCCJEA, Massachusetts will, in essence, mandate a policy which gives
credence to citizen safety, rather than a policy which worships
jurisdictional rulesespecially jurisdictional rules that are detached from
the reality a battered parent faces daily. This policy is significant because
perpetrators of domestic violence use complex procedural rules as a
weapon to further victimize their former partner, for example, by fighting
protracted custody battles to punish victims. 178 Thus, states must adopt the
UCCJEAs emergency jurisdiction provision to ensure real safety for
domestic violence victims.

CONCLUSION
Massachusetts currently follows the Massachusetts Child Custody
Jurisdiction Act when deciding interstate child custody disputes. 179
Generally, the MCCJA resembles the Uniform Child Custody Jurisdiction
Act, an outdated uniform child custody jurisdictional statute developed in
1968 by the National Conference of Commissioners on Uniform State
Laws. 180 In both the Massachusetts statute and the UCCJA, a state court
may invoke its emergency jurisdiction powers only if it is necessary to
protect the child from abuse or neglect. 181
Because of many deficiencies that existed with the UCCJA,
particularly its lack of protection for other victims of violence outside of
the child, the NCCUSL developed a new uniform statute called the

176. Klein et al., supra note 4, at 148.

177. Zorza, supra note 8, at 918.
178. Goelman, supra note 5, at 106.
179. See MASS. GEN. LAWS ch. 209B (2006).
180. See Zorza, supra note 8, at 909.
181. Ch. 209B, 2(a)(3) (emphasis added).
162 NEW ENGLAND LAW REVIEW [Vol. 43:135

Uniform Child Custody Jurisdiction and Enforcement Act in 1994. 182 The
UCCJEA updated and expanded the UCCJAs emergency jurisdiction
provision by allowing a state to exercise its emergency jurisdiction
authority when it is necessary to protect the child because the child, or a
sibling or parent of the child, is subjected to or threatened with
mistreatment or abuse. 183
A bill has recently been introduced into the Massachusetts legislature
which would require the Commonwealth to adopt the UCCJEA as its main
child custody jurisdiction statute. 184 This bill should be immediately passed
into law to provide numerous state benefits. First, the UCCJEAs
emergency jurisdiction provision provides greater protection to victims of
domestic violence because it expands the focus of abuse to include a
parent, thus taking into consideration the dynamics of domestic violence
and its detrimental effects on individuals and families as a whole. 185
Second, adoption of the UCCJEAs emergency jurisdiction provision will
provide even greater protection to children because it expands coverage to
include siblings and protects all children from the dangerous physical and
psychological effects of witnessing family abuse. 186 Third, adoption of the
UCCJEA will help provide national uniformity in child custody
jurisdictional laws since Massachusetts remains one of four states who
have yet to enact the UCCJEA. 187 Finally, adoption of the UCCJEAs
emergency jurisdiction provision in Massachusetts would support a public
policy which places individual safety, as well as an awareness of the
domestic violence epidemic, far above hyper-technical procedural rules and
regulations. 188
Massachusetts has already squandered one previous opportunity to
adopt the UCCJEA into law. 189 The Commonwealth must now mend its
ways by taking down the wall it has built which effectively kept battered
parents and children at the mercy of an outdated and strict procedural
limitation. Upon adoption of the UCCJEAs emergency jurisdiction

182. See Zorza, supra note 8, at 913-14; see supra Part III.
183. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT 204(a), 9 U.L.A.
676 (1997) (emphasis added).
184. H.R. 1657, 185th Gen. Court, Reg. Sess. (Mass. 2008) (presented by Rep. Eugene L.
O'Flaherty), available at http://www.mass.gov/legis/bills/house/185/ht01pdf/ht01657.pdf.
185. See supra Part IV.A.
186. Kim, supra note 109, at 561-62; see supra Part IV.B.
187. See The Uniform Law Commission, A Few Facts About the Uniform Child Custody
Jurisdiction & Enforcement Act, http://www.nccusl.org/Update/uniformact_factsheets/
uniformacts-fs-uccjea.asp (last visited Dec. 1, 2008); see supra Part IV.C.
188. See supra Part IV.D.
189. See S. 872, 183rd Gen. Court, Reg. Sess. (Mass. 2005) (presented by Sen. Robert S.
Creedon), available at http://www.mass.gov/legis/184history/s00872.htm.
2008] ADOPTING UCCJEA EMERGENCY JURISDICTION 163

provision, Massachusetts will finally send the message that it considers

family violence unacceptable and that it must be a factor in child custody
disputes regardless of whom the violence has been directed toward.