Kajko, Weisman & Colasanti, LLP

Court does not address constitutionality of child custody law

Last week the Massachusetts Supreme Court ruled that a man from Lynn would in fact face charges of parental kidnapping in the disappearance of his son nearly four years ago. That ruling reversed a Superior Court decision that said the man would not face parental kidnapping charges because there was no order denying custody of the child to him at the time of the boy's disappearance.

During the course of his case, the man contested the constitutionality of a Massachusetts law that awards child custody to the mother if the purported father is not married to the mother. A father must seek to obtain custody through court action. Although the man claimed that the state law unconstitutionally discriminates against fathers' rights, the Court declined to address the constitutional issue. Instead, it decided the case on narrower grounds, ruling that the father had already abandoned his claim to custody by being absent for most of the child's life.

The course of this sad story spans nearly four years. The boy, who was five years old at the time, had been living with his mother and had not seen his father regularly for at least three years. Following a request to see his son, the mother allowed the father to have three weekend visits with the child.

On the third visit, the boy disappeared. According to the man's lawyer, he is mentally ill. After the boy vanished, the man told a reporter from the Boston Globe that he killed his son and disposed of the body, but a body was never recovered and the boy remains missing to this day. The man has not been accused of murder to date.

The question of whether the law--which presumptively gives custody to mothers of unmarried couples--is constitutional was not tested by this case. An experienced attorney can help fathers seeking custody or visitation understand the current state of the law and discuss available options relating to their family law rights.

Source: The Republic, "Mass. Court restores parental kidnapping charge against Lynn man charged in missing boy case," Denise Lavoie, June 13, 2012.

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