PANDA v. PANDA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal from the denial by the single justice of this court of a motion to stay pending appeal of an order of the trial court dated March 19, 2018. That order denied the plaintiff father's motion to prevent the defendant mother from taking the parties' two children to India during summer vacation on the ground that India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and that the mother intended to keep the children there, depriving the father of his rights, including his right to joint legal custody here in Massachusetts. The motion to stay also sought to stay an order of February 5, 2018, which denied his complaint for modification of their separation agreement with respect to the mother's travel to India with the children.

Because the March 19 order is interlocutory in nature we cannot hear the defendant's appeal therefrom. And, because the notice of appeal was filed more than thirty days after the denial of the complaint for modification, the notice of appeal could not properly bring any claims with respect to that order before us. As the appeal therefore had no likelihood of success, there was no abuse of discretion on the part of the single justice in denying a motion to stay the orders pending appeal.

That suffices to determine the merits of this appeal. We add these words, however, because the interlocutory order involved a motion claiming an emergency in which the father alleged that the abduction of his children to a non-Hague Convention country was imminent. An allegation of an imminent threat of child abduction is of course gravely serious. We may assume without deciding that in a case in which a genuine such threat was present, notwithstanding the procedural niceties, a single justice of this court might appropriately enter an emergency stay order to prevent such an abduction in order to allow a party to seek the appropriate form of appellate judicial review of the matter. In this case, however, there is no record evidence before us supporting the father's allegation. In April of 2016, the parties, each represented by counsel, entered into a binding separation agreement that included a provision that “[w]ife's family lives in India. As such, she may take the children to India during their school vacation unless there is an emergency. Wife will make up any of [h]usband's missed parenting time either before or after her return from India ․” The agreement was jointly presented by both parties to a judge of the Probate and Family Court and was approved and incorporated in the divorce judgment.

India was not then, as it is not now, a party to the Hague Convention. No evidence in the record that we have been shown indicates that the father's legal representation with respect to this provision was deficient, or that he only learned subsequent to court approval of this agreement of the consequences of his agreement to this provision such that he now realizes something he did not before, that travel to India with the children is problematic due to its status as a nonsignatory to the Hague Convention.

Nor have we been pointed to any evidence that indicates an intent on the part of the mother to abduct the children or to prevent their return to the United States after the family visit to India at issue. (And, although of course the single justice could not have known this, the mother and children appear to have ultimately, with consent granted by the father on threat of contempt, traveled to India and returned therefrom as per their planned itinerary.¹ ) Nor have we been pointed to any other evidence indicating that the previously agreed-to trip presented a threat of abduction of the children.

The order of the single justice is affirmed.

So ordered.

FOOTNOTES

1.   No suggestion has been made that this renders this case moot and we conclude that it does not. Even if it did, we would exercise our discretion to address the merits of the appeal. See Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984).