Angiulo: Custody of Refugees Without Parents

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Monday, October 26, 2015

Leonardo Angiulo, GoLocalWorcester Legal Contributor

In between sports soundbites and weather reports we often hear news about a massive population shift in the middle east and illegal human trafficking into the United States from various parts of the world. The sad truth is that within this sea of people are children. Some of these children are seperated from their families and find themselves far from home because of circumstances beyond their control.  

Various federal, private, and state agencies all work together to place unaccompanied children who make it to the United States in new homes all over this country. A lucky few find themselves in the Commonwealth of Massachusetts. A recent case from the Supreme Judicial Court looked at jurisdiction questions for custody proceedings over these refugee children.

In the case titled Custody of Victoria the main question was whether a Massachusetts Judge had authority to grant custody of a child to the Department of Children and Families (“DCF”).  The child had been born in Mexico and was the victim of sexual exploitation in Texas before being identified as eligible for assistance from the Office of Refugee Resettlement.  That office made a determination that the child was an unaccompanied refugee minor and victim of trafficking, who would be relocated to Massachusetts.

Upon arrival in the Commonwealth, according to the facts of the case, the child was released from federal custody and cared for by Lutheran Social Services of New England.That private agency provided the things that all children need including medical and dental care, daily supervision, and schooling.  In addition, the child received some specific attention that she needed, like mental health treatment.   

Approximately three weeks after coming to Massachusetts, DCF received temporary custody of the child because of the emergency. For those wondering what the emergency was, consider that at this point a child is being well cared for, but had no legally designated custodian.  What followed next was an effort by the Trial and Appellate Courts to determine whether Massachusetts had lawful authority to make such a designation.

Part of the difficulty was that Massachusetts, like the other 50 states, can be considered a Uniform Child Jurisdiction Act (“UCJA”) jurisdiction.  This set of laws was not a problem, it simply presented a standard that must be met before a lawful action could commence.  The purpose of the UCJA was ensure that parents did not forum shop in order to get a custody arrangement in state “B” that they preferred to the one they got in state “A.”  The court in Victoria's case, therefore, had to determine whether Massachusetts was the home state with authority over the child or if it was appropriate for them to rule even though they were not the home state because it was in the best interests of the child.

There are four ways Massachusetts court can have jurisdiction over custody determinations of a minor.  Each one is assessed in the opinion, but for the purposes of this column the relevant issue in Victoria's case was that no other state had jurisdiction over the child and it was in her best interest for Massachusetts courts to hear her case.  That best interest analysis focused on her past and future ability for education, medical and mental health treatment, as well as daily supervision in the Commonwealth.

This case provides unaccompanied refugee minors a necessary legal framework for access to our court system.  With it in place, the public and private social service agencies are able to do their jobs and give this vulnerable population a new life.   

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected]. 

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