Temporary custody hearing and waiver

The temporary custody hearing may be held pursuant to one of two mutually exclusive statutory provisions, G. L. c. 119, § 24 (so-called “72 hour” hearing) or § 25 (non-emergency temporary custody hearing). At the temporary custody hearing, the judge must determine whether custody should be removed from the child’s parent, guardian or custodian, or whether the initial temporary custody order should be continued, depending on the circumstances. The judge must consider any nomination by the child or the parents of a relative or other individual to become the temporary legal custodian pending the hearing on the merits. See Care and Protection of Manuel , 428 Mass. 527 (1998). The judge must also make the written certification and determinations required by G.L. c. 119, § 29C (contrary to the welfare certification and reasonable efforts determination). See Care and Protection of Walt , 478 Mass. 212 (2017). The court’s authority under G.L. c. 119, § 26 , to appoint any person or agency to investigate the qualifications of a nominated custodian includes appointing a social worker to conduct the home study. The rule requires that the 72-hour hearing take place within 72 hours of the emergency removal of the child and held over consecutive days. “[T]he purpose of a seventy-two hour hearing is to enable the judge to determine whether a child will be in immediate danger of serious abuse or neglect if returned to his parents or custodian. G.L. c. 119, § 24 . In this respect, the principal interest at stake is the child's immediate welfare. Such hearings should be held as promptly as possible to that end, and continuances sought by a parent or custodian for the purpose of delaying the proceeding for his or her own benefit are properly denied.” See In re Protection of Perry , 438 Mass. 1014 (2003). The need for promptness applies to not only the start of the hearing but the hearing’s conclusion, which is why if multiple hearing days are needed the days should occur consecutively. The 72-hour hearing is “analogous to the hearing accorded a request for a preliminary injunction. In both cases, parties are seeking a temporary, but significant, stabilization of the factual situation at issue.” Care and Protection of Robert , 408 Mass. 52, 68 n.7 (1990). Attorneys are expected to make 72-hour hearings a priority over other cases and therefore should not accept appointment in a 72-hour hearing that will conflict with a previously scheduled matter. This rule addresses waiver by a parent, guardian, custodian or child of either a § 24 or § 25 temporary custody hearing. By waiving the temporary custody hearing, the parent, guardian, custodian or child is relinquishing his/her right to be heard, to object to the court’s orders and to appeal the orders. A parent, guardian, custodian or child may waive the hearing by formal action as provided in this rule, or may forfeit the hearing by failure to appear or participate after having received notice of such hearing. A temporary custody hearing held pursuant to either G. L. c. 119, § 24 or § 25 is not a so called “placement hearing.” Placement decisions are within the discretionary powers of the legal custodian as one of the usual incidents of custody. See G. L. c. 119, § 21 . Decisions related to the normal incidents of custody generally are committed to the Department or third party legal custodian and are reviewable only under § 21 for abuse of discretion or error of law. The court does not have authority to subject the Department to conditions absent a finding of no reasonable efforts. See Care and Protection of Isaac , 419 Mass. 602 (1995), Care and Protection of Jeremy , 419 Mass. 616 (1995) but see Care and Protection of Walt , 478 Mass. 212 (2017). In contrast, if the court grants custody to a third party, it may subject the grant of custody to conditions, including conditions that restrict the third party custodian from changing the child’s placement. General Laws c. 209B sets forth the provisions for the Massachusetts Child Custody Jurisdiction Act (MCCJA), which is “loosely based on” the Uniform Child Custody Jurisdiction Act (UCCJA). See Adoption of Twyla , 104 Mass.App.Ct. 434, Fn. 9 (2024). The National Conference of Commissioners on Uniform State Laws replaced the UCCJA with the UCCJEA in 1997. Id. All 50 states with the exception of Massachusetts have adopted the UCCJEA. Id. The UCCJEA and the MCCJA have similar provisions and though Massachusetts has not adopted the UCCJEA at the time of the promulgation of this rule, the recommended practice is for the court to apply the MCCJA and UCCJEA when reviewing jurisdictional issues in a care and protection case. For the purposes of this rule, the hearing on the merits refers to the hearing that may result in an adjudication and disposition including a termination of parental rights. The hearing on the merits may also be referred to as the 'best interest trial' in some courts.