Turner v. Lewis

Cowin, J.

(dissenting, with whom Sosman, J., joins). I respect*337fully dissent. In my view, the legislative history indicates that the phrase “related by blood” was not intended to encompass persons such as the paternal grandmother and mother in this case.

The court’s decision ignores legislative history and bases its decision on social policy. General Laws c. 209A was enacted in 1978. St. 1978, c. 447, § 2. At that time a family or household member was defined as a “household member, a spouse, former spouse or their minor children or blood relative.” Id. § 2. In 1986, the definition of a family or household member was amended to include a “blood relative or person who, though unrelated by blood or marriage, is the parent of the plaintiff’s minor child” (emphasis supplied). St. 1986, c. 310, § 15. Pursuant to this change, two unmarried parents were considered family or household members because of their status as parents, not because of their blood connection to the child. By this definition, the Legislature expressly indicated that in its view the parents of a child were “unrelated by blood,” despite any blood connection they have to their child (i.e., the father is related by blood to the child, and the mother is related by blood to the child, but, according to the statute, the father and mother are “unrelated by blood” to each other). Thus, if a father is “unrelated by blood” to the child’s mother, then, a fortiori, a paternal grandmother also would be “unrelated by blood” to the child’s mother.

In 1990, the definition of family or household member was amended again to its current version. The definition now includes, among others, persons “related by blood” and persons “having a child in common regardless of whether they have ever married or lived together.” G. L. c. 209A, as appearing in St. 1990, c. 403, § 2, and as amended through St. 1996, c. 450, § 232. The statute continues to define unmarried parents as family members because of their status as parents, not because of a “blood” connection through their mutual child. Again, if the natural parents of a child would not be considered “related by blood,” then the paternal grandmother is not “related by blood” to the child’s mother.1

I recognize that each amendment of the definition of family *338or household member has broadened the categories of persons eligible for a protective order. However, the language and history of the statute do not support the court’s interpretation on the present issue. Consequently, the court attempts to compensate by resorting to “the social reality that the concept of ‘family’ is varied and evolving.” Ante at 334. In identifying this “social reality,” the court relies on reports from the United States Bureau of the Census as evidence of changes in family composition. These reports were issued subsequent to the 1990 amendment to the statute; there is no basis for concluding that the Legislature was aware of the information, or, if aware, that it would have based the Commonwealth’s policy thereon.

Further, the court recognizes a “trend” in “single parent and grandparent headed households.” Ante at 335. According to the court, this trend “require[s]” that the protection offered under G. L. c. 209A extend to custodial grandparents, such as the grandmother here, in order “to fully reflect the reality of American family life.” Ante at 336, quoting Klein, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 801, 818-820 (1993). The role of the judiciary is to construe a statute “so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature.” Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 375 (2000), quoting Commonwealth v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967). The language of the statute “is the principal source of insight into the legislative purpose.” Commonwealth v. Cowan, 422 Mass. 546, 549 (1996), quoting McNeil v. Commissioner of Correction, 417 Mass. 818, 822 (1994). I do not believe that it is the court’s function to interpret a statute in accordance with the most recent “trend” or judicial perception of what “is best” as a matter of social policy, particularly when such interpretation is not consistent with the *339statutory language. “Whether a statute is wise or effective is not within the province of courts.” Commonwealth v. Leno, 415 Mass. 835, 841 (1993), citing Commonwealth v. Lammi, 386 Mass. 299, 300 (1982). I recognize that the violence alleged in this case would, in common parlance, be viewed as a form of “domestic” violence, and that the unique remedies of G. L. c. 209A would seem suitable to the situation. However, it is not for this court to engraft G. L. c. 209A onto any dispute that is, in some sense, a “domestic” dispute. The appropriate procedure for protecting a person such as the paternal grandmother in this case is by legislative, not judicial, amendment to G. L. c. 209A.

Additionally, although not addressed by the court, I do not believe that the paternal grandmother and mother in this case would fall within the category of persons “having a child in common.” The phrase “having a child in com*338mon” is modified by the clause “regardless of whether they have ever married or lived together,” which indicates that the Legislature contemplates this phrase to encompass persons who could have married or cohabited, but who did not do so.