J. Lenk.
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2007, the judge ordered child support to be withdrawn from the defendant’s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)
