Does the Massachusetts Probate and Family Court have jurisdiction over a case involving a Massachusetts gestational carrier if the biological father lives outside the United States with the child? That was the issue the Massachusetts Supreme Judicial Court recently addressed.


Case Facts

In Adoption of Daphne, the father and his same-sex partner entered into a gestational carrier agreement with the child’s birth mother. Both the father and his partner lived outside of the United States of America. The child’s conception occurred through in vitro fertilization. The egg came from an egg donor and the sperm came from the father. The child was born in Massachusetts. The gestational carrier and the father executed a voluntary acknowledgement of paternity (“VAP”). This document recognized that the father is the genetic father of the child.

The father’s home country did not allow unmarried adults to adopt. It did, however, recognize international adoptions from the United States based on the Hague convention. The gestational carrier (the birth mother) agreed to allow the father to file for adoption of the child in Massachusetts. The mother further agreed to terminate her parental rights and responsibilities, and to establish the father as the child’s sole legal parent. She also agreed to remove her name from the child’s birth certificate. However, when the father filed his petition, it was rejected on the ground that the Massachusetts Probate and Family Court did not have jurisdiction over the matter.

The father appealed.


Issue on Appeal

The Massachusetts Supreme Judicial Court transferred the case on its own in order to hear this important and novel issue. The case deals with statutory interpretation, the high court explained. The statute governing the court’s subject matter jurisdiction states that a party must file an adoption petition in the probate court in the county where the petitioner resides. This is true unless the petitioner is “not an inhabitant of this commonwealth.” In that case, a party must file the petition in the probate court in the county where the child “resides.”

The question, therefore, hinged on whether the child was a resident of Massachusetts, so that the probate court could exercise subject matter jurisdiction over his adoption. The high court explained that the child’s domicil would govern. And, based on case precedent, because the child’s mother resided in Massachusetts, the child’s domicil was also in Massachusetts.


Supreme Judicial Court’s Analysis

“There are three questions remaining: whether the mother’s postbirth surrender affected the child’s domicil; whether the father’s postbirth VAP changed the child’s domicil; and whether the father’s removal of the child to his home country changed the child’s domicil.  Because a domicil of origin is not lost until a new domicil is acquired, the question actually is whether any of these actions caused the child to acquire a new domicil,” the SJC explained.

“The mother’s postbirth surrender would not cause the child to acquire a new domicil, as this would frustrate the primary purpose of the adoption statute,” the court continued, “it would be illogical to interpret that the mother’s surrender, pursuant to G. L. c. 210, § 2, would have any impact on the child’s domicil without further court proceedings.”

Although the father signed the voluntary acknowledgment of paternity, the child’s domicil did not change. “Even if we determined that signing the VAP alone, and without further adjudication, granted the father shared legal custody of the child, this could not mean that the child acquired a new domicil as a result. To declare so would mean that each time a court granted any custodial rights to a noncustodial parent, it would change a child’s domicil.”

Lastly, the SJC held the father taking the child outside of the country didn’t change the child’s domicil. Once the court finalizes the adoption and the father becomes the child’s custodial parent, the child’s domicil will change. Until then, it remained in Massachusetts. The high court ruled the Massachusetts Probate and Family Court had subject matter jurisdiction. Additionally, the Probate and Family Court had personal jurisdiction over the parties. In fact, the court could have exercised equity jurisdiction in the interests of justice as well.

The Supreme Judicial Court reversed the judgment of dismissal.


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