Introduction
You cannot win them all even when you are likely correct and that is the great dilemma of family law appeals. Timing and the “status quo” combined with great discretion are family law appellate obstacles and cannot always be changed.
Facts:
This is a child custody action where, more than a year later, after the child had been returned to Massachusetts under the Hague Convention, the Mother moved to vacate the custody judgment as void for lack of subject matter jurisdiction.
The parties married in California in 2019. In 2022 they were living in South Korea, where their child was born. In February 2023 the family traveled from South Korea to California, and in March 2023 they traveled to Massachusetts, where they moved into the Father’s parents’ house.
On Friday, August 18, 2023, the Mother retuned with the child to South Korea and thereafter the Father filed a motion to return the child which was granted by the Probate Court when the Mother did not appear. Thereafter, after litigation under the Hague, the South Korean court ordered the child returned to the Father based , in part, on the Massachusetts order and the child was indeed returned to the Commonwealth.
On June 13, 2025, the Mother then filed a motion for relief arguing that the judgment was void because the court lacked subject matter jurisdiction over the custody determination under the Massachusetts Child Custody Act (MCCJA), G. L. c. 209B. The motion was denied without a hearing on June 25, 2025.
Statute:
G. L. c. 209B, § 1 – Definitions
"'Home state', 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 parent, for at least 6 consecutive months . . . . Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period."
G. L. c. 209B, § 2 (a) (2) – Jurisdiction (default jurisdiction)
"[I]t appears that no other state would have jurisdiction under paragraph (1) and it is in the best interest of the child that a court of the commonwealth assume jurisdiction because (i) the child and his or her parents, or the child and at least one contestant, have a significant connection with the commonwealth, and (ii) there is available in the commonwealth substantial evidence concerning the child’s present or future care, protection, training, and personal relationships."
Mass. R. Dom. Rel. P. 60 (b) (4) – Relief from Judgment or Order
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void . . . ."
Ruling:
The Appeals Court affirmed the order denying the mother’s motion for relief from judgment.
Under the MCCJA, a Massachusetts court may make a custody determination only on one of four grounds: home state, default, emergency, or appropriate forum jurisdiction. G. L. c. 209B, § 2 (a) (1)-(4); Custody of Vale, 106 Mass. App. Ct. 381, 387-388 (2025).
The parties agreed that Massachusetts was not the home state.
The Appeals Court found even without a hearing that the Probate Court could have found “default jurisdiction” stating without support the Lower Court could have concluded that default jurisdiction applied. See McKellar v. Hazen, 325 Mass. 714, 717 (1950) (in absence of contrary findings, denial of motion imports finding of all facts necessary to justify action); Commonwealth v. Bigley, 85 Mass. App. Ct. 507, 511-512 (2014). The Court also rejected the mother’s claim that she was entitled to a hearing.
Important Takeaways
Initial Thoughts:
The issue here is the importance of acting in the first instance and not allowing a significant passage of time to go by before trying to correct an apparent error.
In family law matters, the Appeals Court often rules on the "status quo" when it can, rather than on a pure application of legal principles that might lead to a different result. Timing therefore matters and is critical to consider. Challenging the jurisdiction could have been made in the beginning to preclude an avalanche of potential errors. To challenge it after the fact, although entirely legally permissible may not overcome the barrier of great discretion in family law appellate practice.
For Your Consideration:
If jurisdiction is in question, raise it at the outset and build the record then. A void judgment challenge under rule 60 (b) (4) is not a substitute for acting promptly. This may be particularly true when reviewing a matter in multiple jurisdictions.
To Be Determined:
The Court never decided whether the time in the United States was a temporary absence from South Korea. If she had at the outset, and the eight months in South Korea counted, South Korea is the home state. Would the result have been different?
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