HOUSE DOCKET, NO. 3161        FILED ON: 1/20/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3105

The Commonwealth of Massachusetts

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PRESENTED BY:

Joan Meschino

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to the definition of custody in protection and care of children proceedings.

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PETITION OF:

HOUSE DOCKET, NO. 3161        FILED ON: 1/20/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3105

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 1441 OF 2013-2014.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act relative to the definition of custody in protection and care of children proceedings.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Section 21 of chapter 119 of the General Laws, as most recently amended by Chapter 240 of the Acts of 2012, is hereby further amended by striking out paragraph 9 and inserting in place thereof following new paragraph:-

“Custody”, the power to: (1) determine a child's place of abode, medical care and education; (2) control visits to a child; and (3) consent to enlistments, marriages and other contracts otherwise requiring parental consent. If a child, parent or guardian objects to the carrying out of any power conferred by this paragraph, that child, parent or guardian may take application to the committing court, and the court shall take evidence and make a de novo determination and order on the matter.  The court may also make any such determination or order sua sponte.  If the court determines it to be in the child’s best interests, the court may order the department to move a child or place a child in a specific foster home, residential program, or other placement and may order the guardian or custodian of a child, including the department, to provide visits and other contact under the conditions, with the frequency, and of a duration specified by the court, between the child and the child’s sibling, half-sibling, parent, guardian, custodian or other person.

SECTION 2. Section 23 of said chapter 119 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by deleting paragraph (a)(3) and inserting in place thereof the following:-

(a) (3)  If a child is without proper guardianship due to death, unavailability, incapacity or unfitness of a parent or guardian or with the consent of a parent or parents, the department may seek, and shall accept, an order of the probate court granting responsibility for the child to the department. Such responsibility shall include the right to: (i) determine the child’s abode, medical care and education; (ii) control visits to the child; (iii) consent to enlistments, marriages and other contracts requiring parental consent; and (iv) consent to adoption only when it is expressly included in an order of the court. If a child, parent or guardian objects to the carrying out of any power conferred by this paragraph, that child, parent or guardian may take application to the committing court, and the court shall take evidence and make a de novo determination and order on the matter.  The court may also make any such determination or order sua sponte.  If the court determines it to be in the child’s best interests, the court may order the department to move a child or place a child in a specific foster home, residential program, or other placement and may order the guardian or custodian of a child, including the department, to provide visits and other contact under the conditions, with the frequency, and of a duration specified by the court, between the child and the child’s sibling, half-sibling, parent, guardian, custodian or other person.  In making any order under this clause, the probate court shall consider section 29C and shall make the written certification and determinations required by said section 29C. If a child is in the care of the department of mental health or the department of developmental services, the responsibility for the child as described in this section and all rights therein contained shall continue in the department. If a person with mental retardation who has been declared mentally incompetent was the responsibility of the department prior to reaching the age of 18, the department shall continue to exercise responsibility for that person until that person is declared to be no longer legally incompetent.