# Care and Protection of Jaylen

> Massachusetts Supreme Judicial Court · April 17, 2024

URL: https://www.frixlaw.com/law-library/cases/9960834

## Case

- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** April 17, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-13494

CARE AND PROTECTION OF JAYLEN.1

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

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

Parent and Child, Care and protection of minor, Custody.
Jurisdiction, Care and protection of minor, Custody of
child, Juvenile Court, Probate Court. Juvenile Court,
Jurisdiction. Probate Court, Jurisdiction, Child born out
of wedlock. Practice, Civil, Care and protection
proceeding. Statute, Construction. Due Process of Law,
Care and protection of minor, Child custody proceeding,
Substantive rights. Constitutional Law, Parent and child.

Petition filed in the Essex County Division of the Juvenile
Court Department on March 10, 2021.

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

The Supreme Judicial Court granted an application for
direct appellate review.

Dawn M. Messer, Committee for Public Counsel Services, for
the child.
Jennifer L. Kernan for Department of Children and Families.
Roberta Driscoll-Weiss, for the father, was present but did
not argue.

1 A pseudonym.
2

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

statutory schemes involving the Commonwealth's interest in the

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

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

overlapping jurisdiction. The first statutory scheme provides

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

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

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

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

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

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

party during the pendency of the care and protection proceeding

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

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

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

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

protection case, contending that the Juvenile Court's custody

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

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

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

2 The statute governing the rights and obligations of
parents who are not married to each other at the time of the
child's birth refers to the child as a "child born out of
wedlock." G. L. c. 209C, § 1. We will refer to such children
as nonmarital children.
3

the second relevant statutory scheme, which comprehensively

addresses the rights and responsibilities of the parents of

nonmarital children and provides that the mother of a nonmarital

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

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

custody." G. L. c. 209C, § 10 (b).

The current practice in the Juvenile Court to resolve these

seemingly imbricating schemes is to require the parent, who has

been awarded permanent custody of the child in connection with a

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

Probate and Family Court under the nonmarital child statutory

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

care and protection proceeding only after a Probate and Family

Court judge has issued an order regarding custody of the

nonmarital child. We agree that this practice best reflects the

Legislature's intent and harmonizes the two statutory schemes.

Further concluding that, in the circumstances presented here,

the practice complies with due process, we affirm the Juvenile

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

care and protection case in the present matter.

1. Background. The relevant facts are undisputed. In

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

Department of Children and Families (department) filed a care

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

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

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

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

established paternity when the child was born and was listed as

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

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

the care and protection petition.4

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

temporary custody hearing; a Juvenile Court judge approved the

parents' written stipulation and granted temporary custody to

the father, with conditions. The father has maintained custody

of the child since then.

3 See G. L. c. 209C, § 2 ("Paternity may be established by
filing with the court, the clerk of the city or town where the
child was born or the registrar of vital records and statistics
an acknowledgment of parentage executed by both parents pursuant
to [§] 11 . . ."); G. L. c. 209C, § 11 (a) ("A written voluntary
acknowledgment of parentage executed jointly by the putative
father . . . and the mother of the child . . . and filed with
the registrar of vital records and statistics or with the court
shall be recognized as a sufficient basis for seeking an order
of support, visitation or custody with respect to the child
without further proceedings to establish paternity, and no
judicial proceeding shall be required or permitted to ratify an
acknowledgment that has not been challenged pursuant to this
section").

4 See G. L. c. 209C, § 10 (setting forth mechanism for
parents of nonmarital children to obtain custody in Probate and
Family Court); G. L. c. 209C, § 11 (b) (parents may, through
agreement, determine custody of nonmarital children "provided[]
that any such agreement . . . must be filed with a division of
the [P]robate and [F]amily [C]ourt [D]epartment").
5

A different Juvenile Court judge (second judge)

subsequently issued an order requesting that the Probate and

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

further ordered the father to file a complaint in the Probate

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

filed a motion for temporary orders regarding the child's

custody in the Probate and Family Court matter.5

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

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

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

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

permanent physical and legal custody of the child. The

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

colloquy with the mother, the second judge found the mother

currently unfit and awarded permanent physical and legal custody

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

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

5 In October 2023, the underlying care and protection case
was dismissed because a judge of the Probate and Family Court
had granted the father temporary custody of the child. The
father subsequently filed a request that we nonetheless decide
the legal issues presented by the appeal despite it being moot.
We agreed and allowed the father's motion. See Commonwealth v.
Feliz, 486 Mass. 510, 513 (2020) ("we have discretion to review
a case notwithstanding its mootness where the issue is of public
importance and is capable of repetition yet evading review").
6

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

of the second judge was subject to review and redetermination at

six-month intervals.7

In March 2023, the child filed a motion for permanent

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

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

custody of the child for over two years.

The second judge agreed with the undisputed position of the

parties that the father presented no protective concerns, and

that the father should be granted permanent legal and physical

custody of the child. Nevertheless, the judge denied the

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

Family Court judge was required in order for the father to

retain permanent legal and physical custody of the child,

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

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

6 The parenting plan agreement, which included a schedule
for the mother's parenting time, was signed by the mother and
the father in January 2023; it was adopted by the second judge.

7 As discussed infra, "permanent" custody is thus not
permanent in the colloquial sense. See Care & Protection of
Thomasina, 75 Mass. App. Ct. 563, 570 (2009) (pursuant to § 26,
order of "permanent" custody can be revisited during pendency of
care and protection proceeding).
7

protection proceedings.8 The child timely appealed, and we

allowed his application for direct appellate review.9

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

presents a legal question as to the authority of a Juvenile

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

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

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

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

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

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

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

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

duty of statutory interpretation rests ultimately with the

courts" [citation omitted]).

The starting point of our analysis is the language of the

relevant statutes, which constitutes "the principal source of

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

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

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

8 Concluding, as did the second judge, that dismissal of the
care and protection proceeding would in effect vacate the order
of permanent custody, the father did not join the child's motion
to dismiss.

9 The father filed a late notice of appeal and joined the
arguments made by the child.
8

and unambiguous statutory language is 'conclusive as to

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

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

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

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

the legislative history and other statutes, for assistance in

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

supra at 332-333.

We strive to construe a statute "in harmony with prior

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

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

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

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

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

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

commands to the contrary, we construe statutes to harmonize and

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

relate to the same subject matter, they should be construed

together so as to constitute a harmonious whole consistent with

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

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

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

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

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

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

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

c. 209C.

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

receiving adequate care and protection, the department may file

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

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

department or why any other appropriate order should not be

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

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

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

(setting forth Juvenile Court's jurisdiction over cases arising

under G. L. c. 119).

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

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

10When granting custody to the department, the judge
generally must "certify that the continuation of the child in
his home is contrary to his best interests and shall determine
whether the department . . . has made reasonable efforts . . .
to prevent or eliminate the need for removal from the home."
G. L. c. 119, § 29C.

11General Laws c. 119, §§ 24-26, were enacted in 1954. See
St. 1954, c. 646, § 1.

12In care and protection proceedings, parents are entitled
to the appointment of an attorney at the State's expense. G. L.
c. 119, § 29.
10

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

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

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

the present action, the judge may "transfer temporary or

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

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

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

"extraordinary circumstances that require continued intervention

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

adjudication and permanent disposition," no later than fifteen

months after the care and protection petition was filed in the

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

ii. Nonmarital children. The comprehensive statutory

scheme regarding nonmarital children governs three essential

13If the department meets its burden to prove parental
unfitness by clear and convincing evidence, the Juvenile Court
judge may "adjudge that the child is in need of care and
protection." G. L. c. 119, § 26 (b). See Care & Protection of
Stephen, 401 Mass. 144, 150-151 (1987) (department bears burden
of proving, by clear and convincing evidence, that parent is
unfit and that child remains in need of care and protection).

14The fifteen-month period is extendable by three
additional months if the "[judge] makes a written finding that
the parent has made consistent and goal-oriented progress likely
to lead to the child's return to the parent's care and custody."
G. L. c. 119, § 26 (c). But jurisdiction over the care and
protection petition is not lost by a failure to enter a final
order and the findings in support thereof within the prescribed
time limits. Id.
11

functions: paternity determinations, provision of child

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

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

acknowledged by their parents voluntarily or, on complaint

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

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

declaration relative to their custody or visitation rights

ordered by a court of competent jurisdiction").

Regarding the first two functions -- paternity and child

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

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

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

regard only to paternity and child support, the statute provides

for concurrent jurisdiction by the Juvenile Court in limited

circumstances and for limited duration. Specifically, a

Juvenile Court judge, in connection with a care and protection

proceeding brought under § 24, may issue orders regarding

paternity and child support provided that the § 24 proceeding

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

15 Actions brought in the District Court or the BMC may be
transferred by any party to the Probate and Family Court, and
pretransfer orders of the District Court or the BMC concerning
paternity or support shall remain enforceable as an order of the
Probate and Family Court. G. L. c. 209C, § 3 (d).
12

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

§ 3 (c).16

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

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

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

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

considered the pendency of a § 24 proceeding affecting a

nonmarital child, including presumably the power of the Juvenile

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

16Child support orders by a Juvenile Court judge are of
limited duration. See G. L. c. 209C, § 3 (e) (order for support
entered by Juvenile Court judge enforceable "during the
pendency" of care and protection proceeding, but will expire six
months after dismissal of proceeding unless refiled beforehand
in District Court, BMC, or Probate and Family Court).

17In actions involving custody or visitation, the "court
may appoint counsel to represent either party whenever the
interests of justice require." G. L. c. 209C, § 7.

18Indeed, where a complaint to establish paternity or
support is filed in the District Court or the BMC and the
complaint also includes a request relative to custody or
visitation, it "shall be filed only in the [P]robate and
[F]amily [C]ourt [D]epartment" (emphasis added). G. L. c. 209C,
§ 3 (a). Similarly, where an action for paternity or support is
pending or was previously adjudicated by the District Court or
the BMC, and a party thereto seeks an order relative to custody
or visitation, the party is instructed to file an action in the
Probate and Family Court Department to determine custody or
visitation. See G. L. c. 209C, § 3 (b). Such a filing will
have the effect of transferring the original action from the
District Court or the BMC to the Probate and Family Court, and
"the case shall thereafter be heard only in the [P]robate and
[F]amily [C]ourt [D]epartment" (emphasis added). Id.
13

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

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

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

relative to custody, the mother shall continue to have custody

of a child after an adjudication of paternity or voluntary

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

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

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

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

c. Analysis. i. Statutory interpretation. The child

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

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

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

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

19The statute sets forth detailed guidelines for a Probate
and Family Court judge to consider when determining custody of
the nonmarital child. See G. L. c. 209C, § 10 (a) (discussing
goal to preserve relationship between child and primary
caretaker parent if possible, and consideration to be given to
child's residence during six months prior to proceedings,
whether parent has established parent-child relationship or has
exercised parental responsibilities, whether parents agree to
joint custody, and whether parents can communicate and plan with
each other in child's best interest); G. L. c. 209C, § 10 (e)
(setting additional criteria to be considered when awarding
custody and determining visitation).

20Section 10 also provides that "[n]othing in this section
shall be construed . . . to affect the discretion of the
[P]robate and [F]amily [C]ourt in the conduct of [a custody]
hearing" (emphasis added). G. L. c. 209C, § 10 (e).
14

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

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

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

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

adjudication and permanent disposition" when "intervention by

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

these provisions evince the legislative intent to permit a

Juvenile Court judge to enter a permanent change in custody over

nonmarital children.

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

child's proposed construction of § 26 would render meaningless

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

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

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

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

legislative directive that custody of a nonmarital child "shall"

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

Court, and the Legislature's express consideration of the

jurisdiction of the Juvenile Court over care and protection

21 See G. L. c. 209C, § 3 (a) (District Court and BMC "shall
have no jurisdiction of custody" under G. L. c. 209C); G. L.
c. 215, § 4 (Probate and Family Court Department "shall have
exclusive original jurisdiction of actions . . . relative to
paternity, support, and custody of minor children provided for
in [c. 209C] and shall have jurisdiction concurrently with the
[D]istrict [Court] and [the BMC] [D]epartments of actions
relative to paternity or support as provided in [c. 209C]").
15

proceedings involving nonmarital children, see discussion supra,

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

care and protection proceedings to issue "permanent" custody to

the parent of a nonmarital child must be more limited than

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

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

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

'statutory expression of one thing is an implied exclusion of

other things omitted from the statute'").

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

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

custody order is subject to review and redetermination in view

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

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

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

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

a review and redetermination proceeding, the Juvenile Court

judge revisits the permanent custody order. See Care &

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

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

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

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

parent, which might warrant reconsideration or modification of

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

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

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

(1995).22

In the case of nonmarital children, whose custody under

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

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

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

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

father can have the custody issue determined by a Probate and

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

harmonizes the Legislature's directive that custody of a

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

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

Court's limited authority to issue orders awarding permanent

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

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

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

concluded that keeping the care and protection proceeding open

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

22The party seeking a review and redetermination proceeding
has the burden to go forward with credible evidence of such a
change, but "the department bears the ultimate burden to prove
[by clear and convincing evidence] that the child is still in
need of care and protection." Care & Protection of Erin, 443
Mass. at 572.
17

father to secure custody in the forum provided by the

Legislature for him to do so.

ii. Substantive due process. The child also contends that

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

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

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

Family Court infringes on the rights of fit parents to raise

their children free from unwarranted State involvement and

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

Fourteenth Amendment to the United States Constitution and of

art. 12 of the Massachusetts Declaration of Rights protect the

"fundamental right of parents to make decisions concerning the

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

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

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

Nonetheless, the Commonwealth has a compelling interest in the

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

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

not contend either that the care and protection proceedings

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

scheme targeted to protect the welfare of nonmarital children

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

interest such that either process violates the Federal or State

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

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

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

legitimate and compelling governmental interest and [2] must be

the least restrictive means available to vindicate that

interest" [citation omitted]).

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

father must be excused from pursuing a custody determination in

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

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

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

subject of a care and protection proceeding during which the

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

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

asserts that the Legislature's decision to limit the authority

of the Juvenile Court to issue custodial orders in connection

with a care and protection proceeding involving a nonmarital

child violates substantive due process.

Because there is no fundamental right to a particular

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

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

"collide with a fundamental right" subject to rational basis

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

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

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

the rational basis standard, a statute is constitutionally sound

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

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

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

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

review," and we will recognize every rational presumption in

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

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

(1978).

Here, the Commonwealth has an important interest in having

custody matters involving nonmarital children finally determined

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

has set forth specific, detailed guidelines for Probate and

Family Court judges to follow. See discussion supra. Such

centralization of custody rationally relates to the goal of

producing consistent custodial decisions and facilitates the

Legislature's goal of treating marital and nonmarital children

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

determinations of child custody is well within the Legislature's

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

23We do not address the child's belated argument that the
limits on the authority of the Juvenile Court regarding
nonmarital child custody matters violates equal protection. See
Assessors of Boston v. Ogden Suffolk Downs, Inc., 398 Mass. 604,
608 n.3 (1986) ("Any issue raised for the first time in an
20

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

(Legislature may designate jurisdiction over certain civil

actions to one or more Trial Court departments).

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

requirement of seeking a final determination regarding custody

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

during which time the care and protection case remains pending

and there is at least the specter of continued State

involvement. But the delay cannot be placed entirely at the

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

present case, who has acknowledged paternity need not wait until

the institution of a care and protection proceeding by the

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

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

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

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

Juvenile Court does not render unreasonable the Legislature's

choice to solemnize custodial orders in a different forum. See

appellant's reply brief comes too late, and we do not consider
it"); Allen v. Allen, 86 Mass. App. Ct. 295, 302 n.11 (2014)
(same). We note, however, that the Probate and Family Court has
jurisdiction over modification of custody matters generally, see
G. L. c. 208, § 28, and that the purpose of the nonmarital child
statutory scheme is to ensure that such children are treated the
same as marital children -- a goal that is achieved by
centralization of custody decisions in the Probate and Family
Court. See G. L. c. 209C, § 1.
21

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

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

Legislature has directed the Probate and Family Court to award

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

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

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

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

redetermination of the custody order in this case is theoretical

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

Indeed, the department represents that it plans to close its

case with the family in response to the child achieving

permanency with his father.24 While the potential of State

involvement is no doubt unsettling, nothing in the process set

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

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

176 (2023).25

24As the department asserts, nothing in the record suggests
that the father and child "would continue to receive home visits
from probation officers or that the court investigator remained
involved in the case. Nor is there any indication that a court
appointed special advocate (CASA), or guardian ad litem had been
appointed in this case. And, as [the c]hild has been placed in
[the f]ather's custody, there is no need for annual permanency
hearings pursuant to G. L. c. 119, § 29B."

25We deny the department's motion to strike the child's
January 11, 2024, postargument letter purportedly filed pursuant
to Mass. R. A. P. 22 (c) (2), as appearing in 481 Mass. 1651
(2019). We note, however, that we have not relied on the
contents of the challenged letter in reaching our decision.
22

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

challenged order of the Juvenile Court denying the child's

motion to dismiss.

So ordered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9960834. Public record. Not legal advice.