Delk v. Gonzalez

Decision Date13 December 1995
Citation658 N.E.2d 681,421 Mass. 525
PartiesIngrid Trundy DELK v. Jose GONZALEZ.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Deborah Sirotkin Butler for the defendant.

Nancy C. Stanton (Robert J. Marchand & Carleton E. Abbott, Jr., with her) for the plaintiff.

Paul M. Robinson, Jr., amicus curiae, submitted a brief.


FRIED, Justice.

This matter requires the court to resolve an interstate custody dispute between the plaintiff, Ingrid Delk (Delk or mother), and the defendant, Jose Gonzalez (Gonzalez or father). At the time of oral argument, there were in effect conflicting custody orders in the father's home state of Virginia and the mother's home state of Massachusetts.


Bernadette Lynn Gonzalez (also known as Bernadette Trundy) was born on March 18, 1989, in Virginia to Ingrid Trundy (now Ingrid Delk) and Jose Gonzalez, an enlisted serviceman. Bernadette and her parents lived together in Virginia from her birth until April, 1990. In April, 1990, Bernadette's parents separated, and she resided with her mother. In December of the same year, Delk married her present husband, Michael Delk, also an enlisted serviceman. Soon thereafter Bernadette, her mother and Michael Delk moved to Georgia. In June of 1991, the Delks moved to New York, and in October of 1991, they moved to Fall River, Massachusetts, where they reside today. Gonzalez has resided in Virginia throughout this dispute.

Gonzalez initiated judicial proceedings in Virginia by filing a custody and paternity action on November 28, 1990, prior to the time the Delks removed Bernadette from Virginia. On August 8, 1991, after a hearing, the Juvenile and Domestic Relations District Court of Norfolk, Virginia (Virginia court), awarded custody of Bernadette to her mother. Gonzalez appealed from this ruling, but before the appeal could be resolved, the parties entered into a written agreement. At a proceeding at which Delk was present, the parties signed the agreement and submitted it to the Circuit Court for the City of Norfolk (Virginia Circuit Court) as the consent decree of December 11, 1992. The consent decree awarded the parents joint legal custody of Bernadette, the mother with primary physical custody and the father with liberal visitation rights.

As provided in the consent decree, Gonzalez traveled to Massachusetts to visit Bernadette on December 26, 1992. When Gonzalez arrived at the Delks' home, Delk alleges that Gonzalez threatened to take Bernadette away from her permanently. The police were called and Gonzalez left without Bernadette. Delk then obtained an abuse prevention order pursuant to G.L. c. 209A (1992 ed.), prohibiting Gonzalez from abusing Delk and ordering him to remain away from Delk's residence. Alleging that Gonzalez violated the restraining order and that he was stalking Delk in violation of G.L. c. 265, § 43 (1992 ed.), allegations Gonzalez denies, Delk filed a criminal complaint against Gonzalez in the New Bedford District Court.

On March 18, 1992, Gonzalez appeared in the Virginia court requesting that a show cause summons be issued against Delk for denying him visitation rights. From April 9, 1992, to April 28, 1993, the Virginia court on several occasions issued a capias for Delk's arrest because she failed to appear in court to explain why Gonzalez had been denied visitation. Gonzalez also sought enforcement of his visitation rights in the Virginia Circuit Court. On January 6, 1993, Gonzalez filed a petition in the Virginia Circuit Court requesting that Delk show cause why she should not be held in contempt for refusing to allow Gonzalez to visit Bernadette pursuant to the consent decree. The mother did not answer this request, and on March 16, 1993, the judge of the Virginia Circuit Court found Delk in contempt of court and issued a capias for her arrest. Although the mother has not appeared in Virginia since she signed the consent decree, her counsel was present at these proceedings at all relevant times.

In the meantime, on January 8, 1993, Delk filed a complaint to revise, alter and enforce a foreign decree in the Probate and Family Court Department of Bristol County (Massachusetts court). The docket reveals that no action was taken on this complaint until August of 1993.

On June 29, 1993, not having seen Bernadette since December, 1991, Gonzalez filed a petition in the Virginia court in which he sought custody of Bernadette. On July 29, 1993, the Massachusetts court entered an ex parte abuse prevention order pursuant to G.L. c. 209A against Gonzalez. This order required that Gonzalez surrender his rights to the custody of Bernadette to Delk. The Massachusetts court vacated this order on August 8, 1995.

A hearing on Gonzalez's petition for custody was scheduled for August 4, 1993, in the Virginia court. Two days before the hearing date, however, Delk filed a motion in the Massachusetts court to stay the proceedings in the Virginia court. On August 9, 1993, the Massachusetts court entered a temporary restraining order prohibiting Gonzalez from pursuing activity in the Virginia court. Nevertheless, on August 18, 1993, the hearing on Gonzalez's petition took place in Virginia with Delk's attorney making a special appearance. At the hearing, the Virginia court refused to decline jurisdiction over the custody issue. The Massachusetts court responded by issuing a temporary order incident to Delk's complaint awarding Delk custody of Bernadette pending a hearing in the Massachusetts court on the merits.

On September 8, 1993, a judge of the Virginia court, relying on a report of the guardian ad litem and Delk's "persistent denial of visitation" privileges to Gonzalez, issued an order awarding custody to Gonzalez. In that order, the Virginia court held that pursuant to the Parental Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A, the Virginia court "continues to have jurisdiction under subsection (d) of the PKPA if this Court has jurisdiction under Virginia law." Turning to Virginia State law, the Virginia judge stated, "Virginia would not presently have jurisdiction under any subsection of § 20-126, the jurisdictional section of the UCCJA. However ... § 20-108 gives Virginia courts continuing jurisdiction when the child has been removed from Virginia." 1 Having found jurisdiction in Virginia, the judge concluded that the Massachusetts court's order staying the proceedings in Virginia was void, as were any ex parte protective orders issued by the Massachusetts court against Gonzalez to the extent that they had an impact on the Virginia court's custody determination. The Virginia Circuit Court affirmed this order and issued a final order nunc pro tunc on September 21, 1994, awarding custody of Bernadette to Gonzalez effective February 16, 1994. Delk did not appeal this determination.

In the Spring of 1994, the Massachusetts court began to consider Delk's amended complaint to revise, alter and enforce foreign decrees. As the Uniform Child Custody Jurisdiction Act § 7(d), 9 U.L.A. 233 (Master ed. 1988) (UCCJA), encourages them to do, the Massachusetts judge and the Virginia judge spoke on the phone about this conflict on May 25, 1994. The Virginia judge refused to decline jurisdiction, and the two judges were unable to resolve this conflict.

A hearing on Delk's amended complaint was eventually held on August 8, 1994. In his findings and order of August 24, 1994, contrary to the Virginia judge's holding, the Massachusetts judge concluded that Massachusetts had exclusive jurisdiction over the issue of custody under the Massachusetts Child Custody Jurisdiction Act, G.L. c. 209B (1994 ed.) (MCCJA). 2 As for the application of subsections (g) and (f) of the PKPA, the Massachusetts judge stated, "[i]n this case, Massachusetts clearly has jurisdiction ..., and while it cannot be said that Virginia has declined to exercise jurisdiction, the courts of Virginia, in the respectful opinion of this court, cannot exercise jurisdiction any longer." The judgment awarded Delk sole legal and physical custody of Bernadette. Gonzalez appealed, and we granted his application for direct appellate review.


The PKPA "[e]xtend[s] full faith and credit requirements to child custody conflicts." Thompson v. Thompson, 484 U.S. 174, 187, 108 S.Ct. 513, 519, 98 L.Ed.2d 512 (1988). Congress enacted the PKPA with the principal purpose of "avoid[ing] jurisdictional competition and conflict between state courts," Pub.L. 96-611, § 7(c)(5), 94 Stat. 3569 (1980), and note following 28 U.S.C. § 1738A. See Thompson v. Thompson, supra at 183-187, 108 S.Ct. at 518-519. Thus, the PKPA requires the court of one State to repose confidence that the courts of a sister State will resolve these often emotion-laden custody disputes wisely and with compassion. That confidence is most sorely tested in a case such as this one where the court, which presently has the child before it, is convinced that its judgment and not that of a court in another State will best serve the interests of that child. Such conflicts are especially difficult because jurisdictional rules, particularly those of the PKPA, tend to be rigorous and formalistic, while flexibility and sympathetic informality are the very essence of modern child custody jurisprudence. The notions of comity demanded by our Federal system require us to concede that the courts of our sister States, even when they reach a different decision than we would have, are endowed with an equal measure of wisdom and sympathy.

There is no dispute that Virginia had jurisdiction over the custody dispute up to the date of the consent decree, December 11, 1992. 3 The question is whether four weeks later, on January 8, 1993, the Massachusetts court had acquired exclusive jurisdiction to adjudicate Bernadette's custody. 4 The Massachusetts judge first determined that pursuant to the MCCJA, G.L. c. 209B,...

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