Commonwealth v. Gonzalez
969 N.E.2d 655
Mass.2012Background
- Indicted in December 2008 under G. L. c. 265, § 26A (parental kidnapping) after G.G., the defendant's five-year-old son, disappeared while in his care.
- Paternity established by 2007; the mother (D.C.) had sole custody pending court orders; the defendant initially paid child support but later reduced it, and no custody order was issued.
- In 2008 the defendant sought joint custody and visitation; after two weekend visits without incident, G.G. disappeared on August 17, 2008 during a weekend with the defendant.
- The Commonwealth relied on G. L. c. 209C, § 10(b) (mother retains custody absent order) to show the defendant lacked lawful authority.
- The defendant argued § 10(b) discriminates by gender and sought dismissal under McCarthy; the trial court granted the motion, and the Commonwealth appealed collaboratively.
- The issue on review was whether the indictment could rest on § 10(c) (custody to mother upon relinquishment) as an alternative, and whether the as-applied challenge to § 10(b) was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May indictment rely on § 10(c) rather than § 10(b)? | Commonwealth argues § 10(c) proves lack of lawful authority. | Beals-based premise implied discrimination; § 10(b) unconstitutional as applied. | Indictment may rest on § 10(c); § 10(b) as applied was not necessary. |
| Is § 10(b) unconstitutional as applied to the defendant (gender-based equal protection)? | Commonwealth contends no as-applied challenge needed because other grounds exist. | § 10(b) discriminates against him as a father. | Court did not reach a merits ruling on § 10(b); § 10(c) suffices and § 10(b) as applied not reached. |
| Was the McCarthy motion appropriate given the grand jury evidence? | Indictment supported by evidence of lack of lawful authority under § 10(c) or § 10(b). | Insufficient evidence of lack of lawful authority under § 10(b). | McCarthy motion reversed; indictment allowed to proceed on § 10(c) basis. |
| Did the defendant have an avenue to pursue custody through Probate and Family Court instead of self-help? | Public policy discourages self-help; Probate court remedies exist. | None specific beyond asserted rights; procedural path unclear. | Court endorses Probate and Family Court as proper remedy; self-help condemned. |
| Did the court’s conclusion align with best interests and safety of the child in balancing parental rights? | Best interests standard supports custody dispositions; preserving child safety. | Father’s custodial rights should not be disregarded without proceedings. | Yes; custody decisions must prioritize child welfare within statutory framework. |
Key Cases Cited
- Commonwealth v. McCarthy, 385 Mass. 160 (Mass. 1982) (McCarthy framework for dismissing indictments when evidence of criminality is lacking)
- Commonwealth v. Moran, 453 Mass. 880 (Mass. 2009) (elements of parental kidnapping and conduct detailing lawful authority)
- Commonwealth v. O’Dell, 392 Mass. 445 (Mass. 1984) (probable cause standard for grand jury evaluation)
- Commonwealth v. Dowe, 315 Mass. 217 (Mass. 1943) (indictment may cover multiple means of committing a crime)
- Commonwealth v. Cheremond, 461 Mass. 397 (Mass. 2012) (murder indictment covers multiple theories; pleading robust)
- Smith v. McDonald, 458 Mass. 540 (Mass. 2010) (context for custody and equal protection considerations in nonmarital cases)
- Commonwealth v. Powell, 459 Mass. 572 (Mass. 2011) (as-applied challenge requires denial of remedy to have been plausible)
- Department of Revenue v. C.M.J., 432 Mass. 69 (Mass. 2000) (gender-neutral interpretation of custody statutes; custody outcomes)
- Beals v. Beals, 405 Mass. 550 (Mass. 1989) (nonmarital parents and custody rights; marital presumption context)