Wednesday, May 4, 2011

Can DCF records be used in my Custody Case?

The Court can use any credible evidence, that conforms with the rules of evidence, in making determinations about custody. The Court often has to weigh the source of the evidence as well as the content of the evidence presented. This is the same for DCF records, although there are limitations on how this information is obtained by the Court.

In a recent case, the Supreme Judicial Court of Massachusetts, reviewed and stayed certain informal procedures that were being used in the Hampden Division of the Probate and Family Court to access the confidential information contained in Department of Children and Families records. Brantley v. Hampden Division of the Probate and Family Court Department, Mass SJC-10343 (2010).

When DCF gets involved with a family it is usually an indicator that there is some danger of neglect or abuse to the children. Naturally this information could be useful for Probate and Family Court Judges to be aware of in making determinations. However, there are limitations to how DCF can share this information because of it's sensitive nature, and there are also very significant due process concerns about this information including how much hearsay it might contain and the lack of opportunity for litigants to respond to allegations. These concerns were discussed at length by the Massachusetts Supreme Court and based on those concerns, the Court ordered the Hampden division to stop using these informal procedures to talk to DCF.

The Court also urged the Chief Justice of the Probate and Family Court to create a standing order on this issue. A draft Standing Order is pending which provides procedures for the Court to follow when requesting information from DCF (formerly DSS), but no final order has been issued yet.

Until there is further guidance on this matter, if you want the Court to be aware of DCF actions in your custody matter, then you must file a Motion to Release with the Probate & Family Court and Subpeona the records from DCF. DCF will not release the records until the Judge rules on the Motion to Release. If you need help completing these forms you should consult with an attorney.

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