HISTORY: The parties were granted a joint application for direct appellate review after a Superior Court judge allowed the defendant’s McCarthy motion to dismiss on the basis of the unconstitutionality of G.L. c. 209C, § 10(b). Commonwealth v. McCarthy, 385 Mass. 160 (1982). McCarthy allows a court to dismiss an indictment where the grand jury receives “no evidence of criminality” on the part of the accused.
FACTS: The defendant was indicted in December 2008, under the parental kidnapping statute (G.L. c. 265, § 26A) after his five year old nonmarital son (G.G.) disappeared while in the defendant’s care. The defendant argued that the Commonwealth could not prove that he acted “without lawful authority” in allegedly taking G.G. as required by the kidnapping statute. The Commonwealth relied on G.L. c. 209C, § 10(b) to satisfy this element of the crime, “the child’s mother is vested with sole physical and legal custody, and that custody arrangement continues even after paternity is established until modified by a court.” The defendant challenged § 10(b) because it discriminates against him based on his gender by granting ongoing custody of nonmarital children to their mothers absent modification by court order.
In 2003, G.G. was born and the defendant is listed as G.G.’s father on his birth certificate. The mother and the defendant never married, but the three lived together until G.G was about two years old. The parents separated in 2005 and G.G. remained in the care of his mother while the defendant orally agreed to pay child support. The mother ended up seeking an order for child support in the Probate and Family Court. When G.G. was almost four years old, in April 2007, the judge ordered child support to be withdrawn from the defendant’s paycheck. The defendant did not seek and the judge did not issue any custody or visitation orders.
By June 2008, the defendant filed a complaint in the Probate and Family Court for joint custody of G.G. and for visitation rights even though he had not had any contact with G.G. for almost one year. The mother and the defendant agreed that he could have weekend visits with G.G. at the defendant’s home. There were no incidents during the first two visits occurring August 1-3 and August 8-10, 2008. The next weekend, August 17, 2008, G.G. went missing and has not since been found. According to the mother, G.G. was dropped off at the defendant’s home on a Friday (August 15, 2008) like the previous visits; whereas the defendant told the police he had not been with G.G. that weekend, and had not seen him since the previous weekend.
ISSUE: Does an as-applied constitutional challenge of a parental kidnapping statute warrant a dismissal of a grand jury indictment when there may be other ways still available of proving the same element of the crime?
No. Parental kidnapping requires that an individual, “being a relative of a child less than eighteen years old, without lawful authority, holds or intends to hold such a child permanently or for a protracted period, or takes or entices such a child from his lawful custodian.” The Commonwealth must provide evidence of each of the elements before the grand jury to establish “probable cause” that the defendant, in taking or holding G.G. acted “without lawful authority.” The Commonwealth can prove that an individual lacks lawful authority over his child in numerous ways through a range of statutes or court order. Therefore the defendant can be convicted, if the Commonwealth can establish his lack of authority over G.G. in any way that element can be proved.
The indictment may instead be based on G. L. c. 209C, § 10(c), which states that “if either parent…relinquishes care of the child or abandons the child and the other parent is fit to have custody, that parent shall be entitled to custody.” For three years, the mother acted as G.G.’s sole custodian while the defendant had completely disappeared during one of those years. The defendant asked for permission to re-enter G.G.’s life from the mother, which recognizes her role as the custodial parent. This evidence is sufficient to meet the burden of evidence that the defendant “relinquished care” of G.G. to the mother under G. L. c. 209C, § 10(c), and lacked lawful authority under the parental kidnapping charge “upon the expiration of [the mother’s] permission at the end of the weekend visit.”
The proper way to challenge the default rule in favor of the mother’s custody would have been to file for physical custody of G.G. in the Probate and Family Court pursuant to G. L. c. 209C, § § 1 and 10. If the judge would have refused to grant the defendant either joint or sole physical custody and legal custody, the defendant could then use his as-applied constitutional challenge on appeal. Otherwise, unmarried noncustodial fathers would be allowed to take their child without a court order or custodial mother’s agreement, and during a criminal prosecution for parental kidnapping which is sure to follow, “air their grievances” concerning statutes that apply to nonmarital children.
The standard of this inquiry is based upon the child’s safety first. Unmarried, noncustodial fathers cannot resort to “self-help” in these circumstances by taking the child first, and raising an as-applied constitutional challenge of a custody statute disregards the child’s safety and best interests. The rights of an unmarried, noncustodial father “will not be enforced to the detriment of the child.” Richards v. Forrest, 278 Mass. 547, 553 (1932).
The defendant must show that he would have been denied custody before he can challenge the constitutionality of the custody statutes as applied to him. Because he did not fully pursue his remedy in the Probate and Family Court, or demonstrate any interest in physical custody of G.G. in the three years prior to his disappearance, the defendant cannot now raise this constitutional challenge.
JUDGMENT: Reversed the order allowing the motion to dismiss the indictment (MB)