Juvenile Court Rules  Rules for the Care and Protection of Children: Rule 9. Temporary custody hearing and waiver (Effective August 4, 2025)

Pursuant to G. L. c. 119, § 24, a temporary custody hearing shall be held within 72 hours of the emergency removal of the child unless the parent, guardian or custodian waives their right to the hearing. It is presumed that the hearing shall occur over consecutive dates and only be continued for exceptional circumstances, however in any event the hearing shall conclude within 30 days of the date of emergency removal.

The temporary custody hearing pursuant to G. L. c. 119, § 24 or § 25 may be waived by a parent, guardian, custodian or child. The waiver by the parent, guardian or custodian shall be in writing signed by the parent, guardian or custodian and, unless such person is self-represented, accompanied by a certification by his/her attorney. The certification shall include a statement that the attorney has discussed the waiver with his/her client and advised the client that he/she is giving up the right to object and present evidence at the hearing in opposition to the court’s orders, including orders regarding his/her child’s custody, and the right to appeal the court’s orders. The waiver and the certification shall be on a form approved by the Chief Justice of the Juvenile Court. The court shall conduct a colloquy with the parent, guardian or custodian and determine whether the waiver was intelligently and voluntarily made. The attorney for the child may waive the temporary custody hearing by signing a waiver and certification form on behalf of his/her client.

Waiver or forfeiture of the hearing is distinguished from the circumstance in which a parent, guardian, custodian or child agrees to a temporary transfer of custody but seeks to nominate a relative or other individual to be appointed the child’s temporary custodian pending the hearing on the merits. Although that party may have acknowledged or stipulated that there is sufficient evidence to support a temporary transfer of custody, he/she has not waived the opportunity to be heard on the issue of a third-party temporary custody order. In that situation, the parent, guardian or custodian waives his/her right to a hearing but reserves the right to a third-party custody hearing. Upon receipt of the waiver, the court shall schedule a third-party custody hearing. A parent, guardian, custodian or child may exercise their right to a temporary custody hearing and simultaneously nominate a relative or other individual to be appointed the child’s temporary custodian in the event the court finds that there is sufficient evidence to support the temporary transfer of custody. When necessary, the court shall order a home study of the proposed custodian in accordance with G.L c. 119, § 26. The third-party custody hearing shall occur not more than six weeks following the waiver or conclusion of the 72-hour hearing. For a child who has not been placed with kin or with the person nominated by the parent, the court shall make every effort to conduct the third-party custody hearing no more than three weeks following the waiver or conclusion of the 72-hour hearing. The only issue reviewed and determined at the hearing shall be whether the nominated custodian is qualified by the court to give care to the child.

At the inception of the case, the court shall inquire of all parties and the assigned social worker for the family as to whether there is reason to believe that the children are Indian children subject to ICWA. If it is determined that ICWA applies, the court shall order the Department to provide notice to the tribe and confirm that all other legal requirements under ICWA have been satisfied prior to the date of the status hearing.

At the conclusion of the temporary custody hearing, the court shall issue the following orders, in writing:

1. Temporary Custody order continuing custody of a child with the Department, or ordering custody of a child to the Department, to a named non-party/third party custodian, or to the parent, including non-custodial parent, guardian or custodian;
2. Determination regarding reasonable efforts as required by G. L. c. 119, § 29C;
3. Scheduling order setting forth the dates for identification of the child (G. L. c. 119, § 24), the filing of the birth certificate (Rule 6), establishment of parentage if applicable, the discovery/motion status hearing (Rule 13), the pre-trial conference (Rule 14), and the permanency hearing (scheduled in accordance with G. L. c. 119, § 29B and Trial Court Rule VI). The scheduling order shall be on a form approved by the Chief Justice of the Juvenile Court;
4. Any other orders as determined by the judge.

The dates for the trial readiness conference and the hearing on the merits shall be scheduled at the discovery/motion status hearing in accordance with Rule 13 of these rules. A judge may schedule in the judge’s discretion the dates for the trial readiness conference and the hearing on the merits at the temporary custody hearing as part of the written scheduling order required by section E.3 of this Rule.

The hearing on the merits shall occur over consecutive days. Once begun, the hearing shall occur over consecutive days with no continuances allowed except for extraordinary circumstances. Any continuance granted shall be accompanied by written motion and oral findings on the record. If a hearing date is continued, it is presumed that the hearing will continue the next business day.

The court shall order counsel for all parties and the Department to determine whether there are jurisdictional issues implicated under the MCCJA/UCCJEA involving the parties. If it is determined that there are jurisdictional issues in the case, the court shall take immediate steps in accordance with the MCCJA/UCCJEA to resolve the jurisdictional issues. All written and oral communications between the court and the court of another jurisdiction shall be recorded and made part of the case record.

The court shall order counsel for all parties to determine whether the ICPC is applicable in the care and protection case.

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.