REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2766
September Term, 2015
______________________________________
NICOLE PILKINGTON
v.
ROMAN PILKINGTON, II
______________________________________
Meredith,
Leahy,
Beachley,
JJ.
______________________________________
Opinion by Leahy, J.
______________________________________
Filed: November 29, 2016
Nicole Pilkington (Appellant) challenges the Circuit Court for Harford County’s
jurisdiction to issue the underlying order awarding sole legal and primary physical custody
of her child R.P., to her former husband, Roman Pilkington, II (Appellee). Ms. Pilkington
is a citizen and current resident of Germany. Mr. Pilkington is a Sergeant in the United
States Army, and the transience of his residences in that service underlies the issues at the
crux of this case.
The parties met in 2003 in Germany where they got married and became the parents
of R.P. During the time the married couple lived in Germany, Ms. Pilkington also gave
birth to B.P., who, it was later determined, was not the biological child of Mr. Pilkington.
The parties moved to Colorado, where they divorced two years later and entered into a
court-ordered custody plan for R.P., awarding Ms. Pilkington primary physical custody.1
After another three years, Mr. Pilkington moved to Maryland, where he currently resides.
In 2014, Ms. Pilkington took B.P. and R.P. to Germany for a month-long vacation,
and then decided unilaterally to stay in Germany and enroll both children in school there,
in violation of the Colorado court’s custody order for R.P. Nineteen months later, when
Ms. Pilkington allowed R.P. and his sister to visit his father in Maryland, Mr. Pilkington
1
The parenting plan from the Colorado divorce and custody proceedings that is part
of the limited record in this case does not include a plan for B.P. In the Third Party
Complaint for Custody filed below by Mr. Pilkington for the custody of B.P., Mr.
Pilkington averred that “no court or judicial body of the United States or any foreign
country has issued an order regarding a custodial arrangement for the minor child, B.P.”
2
sought judicial intervention. He filed two emergency custody petitions in the Circuit Court
for Harford County for R.P. and B.P.
At the emergency custody hearing, Ms. Pilkington appeared through counsel and
challenged the court’s jurisdiction under the Maryland Uniform Child Custody Jurisdiction
and Enforcement Act (“Maryland UCCJEA” or “Act”), Maryland Code (1984, 2012 Repl.
Vol.), Family Law (“FL”) § 9.5-101 et seq. The court decided it could exercise jurisdiction
under the Act, but ordered Mr. Pilkington to return the children to Germany until the court
could conduct a full trial. Once the children were back in Germany, Ms. Pilkington broke
off all communications and did not participate in any further court proceedings preceding
this appeal. In response, the circuit court determined that Ms. Pilkington’s behavior was
inconsistent with R.P.’s best interest and awarded sole legal and primary custody of R.P.
to Mr. Pilkington.
Ms. Pilkington presents the following issues:
1) “Whether the lower court erred when it modified custody without subject
matter jurisdiction.”
2) “Whether the lower court erred and violated the Mother’s due process
rights and fundamental liberty interest in the care, custody and control of
her son in violation of the United States Constitution, the Maryland
Declaration of Rights and Maryland statutory and case authority when it
failed to provide the Mother notice and an opportunity to be heard.”
3) “Whether the lower court erred and violated the Mother’s due process
rights and fundamental liberty interest in the care, custody and control of
her son when it exceeded the authority afforded it by the Maryland
Rules.”
3
4) “Whether the lower court abused its discretion when it modified and
changed custody without holding a hearing and without any factual
findings.”
We hold that the circuit court in this case exceeded the jurisdictional restraints
imposed under the Maryland UCCJEA by entering an order that modified a foreign
jurisdiction’s existing custody order when Maryland was not the child’s home state and
there was no other jurisdictional basis to modify an existing order under FL § 9.5-203. We,
therefore, must vacate the circuit court’s order and remand the case with instructions that
the court limit itself to the authority contained in the Maryland UCCJEA’s enforcement
subtitle.
BACKGROUND
A. The Marriage and Divorce
Mr. Pilkington met Ms. Pilkington, a German national, while he was stationed with
the United States Army in Schweinfurt, Germany. On May 23, 2003, the couple married
in Niederwerrn, Bavaria, Germany, where they lived until December 2008 when the Army
transferred Mr. Pilkington to Colorado Springs, Colorado. During their marriage and while
the couple still resided in Germany, Ms. Pilkington gave birth to two children: B.P., born
in 2004, and R.P., born in 2006. The couple remained married until October 28, 2010, at
which point they obtained a Decree of Dissolution of Marriage (“Colorado Order”) in the
District Court for El Paso County, Colorado. A paternity test at the time of the parents’
divorce proved that Mr. Pilkington is not B.P.’s biological father, although her birth
certificate identifies him as the father. R.P. is Mr. Pilkington’s biological son.
4
The Colorado Order incorporated a parenting plan for R.P., which set child support,
provided Ms. Pilkington with primary physical custody of R.P., and granted Mr. Pilkington
weekend visitation during the school year and a total of 170 overnights per year. 2 The
Colorado Order also required that either parent wishing to relocate the child must “file a
Motion with the Court . . . and obtain court permission to relocate, unless the parties have
submitted to the Court a written agreement/stipulation[.]”
B. Custody, Visitation & the Underlying Dispute
After the Pilkingtons lived separately in Colorado for almost three years, the Army
transferred Mr. Pilkington from Colorado Springs to Aberdeen Proving Ground, Maryland,
in October of 2013. The children remained in Colorado with Ms. Pilkington from October
until their school’s Christmas break, at which point they traveled to Maryland to spend the
holiday with Mr. Pilkington. Then, at Ms. Pilkington’s request, Mr. Pilkington provided
Ms. Pilkington with written permission allowing her to take the children to visit her family
in Germany from January 25, 2014 to February 20, 2014. 3 Once in Germany, Ms.
Pilkington decided unilaterally to remain there with the children and enroll them in a
German primary school. She did not ask Mr. Pilkington for a joint stipulation to amend
2
The Colorado Order incorrectly provided Ms. Pilkington with 265 yearly
overnights and Mr. Pilkington with 170. Ms. Pilkington presumes that the error is with
Mr. Pilkington’s allotted number and the correct distribution is 265 nights with Ms.
Pilkington and 100 with Mr. Pilkington.
3
Ms. Pilkington notes that this permission was not required for B.P. since there was
no court order in place regarding her custody.
5
the parental plan, nor did she seek the Colorado court’s permission to relocate the children
pursuant to the Colorado Order. That summer, Mr. Pilkington travelled to Germany to visit
the children. He returned to Maryland two weeks later without having sought a court order
to enforce his custody rights.
A year passed before Mr. Pilkington would see the children again. At no point in
the meantime did Mr. Pilkington file a motion in any court for the children’s return. The
following summer, with Ms. Pilkington’s permission, Mr. Pilkington flew to Germany to
pick up the children to bring them to Maryland from June 29, 2015, until September 11,
2015, at which point they were to return to Germany. When the time came for the children
to return to Germany, Mr. Pilkington took the children only as far as Philadelphia
International Airport. Once at the airport, Mr. Pilkington claims the children were upset to
leave him so he took them back to Maryland where he enrolled them in school.
C. The Emergency Custody Hearing
Ten days after the children were supposed to fly back to Germany, Mr. Pilkington,
through counsel, sent Ms. Pilkington notice electronically, advising her that he would be
filing an “Ex Parte Petition for Emergency Custody in the Circuit Court for Harford County
on September 24th, 2015 at 8:30 a.m.” Two days later, Mr. Pilkington again sent Ms.
Pilkington and her Maryland counsel notice of the action and certification of service—this
time by both email and regular mail. Then, on September 24, 2015, Mr. Pilkington filed
his petition for temporary custody of R.P. and a corresponding affidavit in compliance with
6
the requirements for a petition to enforce child custody determination.4 Mr. Pilkington
brought his petitions pursuant to FL §§ 9.5-204 and 9.5-304, as well as § 9.5-303, and filed
his affidavit of compliance pursuant to § 9.5-308 of the same title.
Mr. Pilkington’s complaint alleged that Ms. Pilkington kept the children in Germany
in disregard of the Colorado Order, depriving Mr. Pilkington of his rights therein. Mr.
Pilkington asked the court “to issue a temporary order enforcing the visitation schedule
made by the Colorado court until such time that the foreign judgment can be registered in
Maryland, and order that [he] be awarded primary physical custody of [R.P.] on a pendente
lite basis.” Mr. Pilkington only sought custody pendente lite because, he reasoned, that if
granted, “Maryland [would] become the ‘home state’ of [the children] in December 2015.5
That same day, the circuit court held an emergency custody hearing. As an initial
matter at the hearing, Ms. Pilkington appeared through counsel and questioned the court’s
subject matter jurisdiction to hear the case under the Maryland UCCJEA. The court
observed: “If [the children] had gone from Colorado to Maryland, I would agree one
hundred percent that you are in the wrong court. Since they had that year span or year plus
over in Germany, then under the [Maryland UCCJEA] there really isn’t any state in this
country that has clear, pure six month jurisdiction.” Mr. Pilkington’s counsel
4
Mr. Pilkington also filed a third party complaint for permanent custody of B.P.
The separate motions were required because the children presented different jurisdictional
and custodial issues.
5
FL § 9.5-101(h) provides that a state qualifies as a child’s home state for
jurisdictional purposes once a child has lived there for six consecutive months.
7
acknowledged the home state issue, noting: “Due to the home state issue of six months, I
was going to file that in December when that time comes.” Ultimately the court found that
it had jurisdiction:
Under the [Maryland UCCJEA] -- once again, if we didn’t have that little
intercession in Germany for over a year, clearly we wouldn’t [have
jurisdiction] and I would tell you all to pack your bags and go see beautiful
Colorado. . . . But we do have that. So, if you look at what state in the union
has any [jurisdiction], there is really no longer one that is clear. We look at
the contacts with this state and at this point in time you still have two states
fighting for it, one is Colorado under a continuing jurisdiction aspect and it
is their Order, et cetera, but nobody has been there for over a year. Nobody
has been here for long. The end of June and three months is all we have. So,
it isn’t terrific contact, but it certainly seems to beat anybody else in the USA.
So, I’m not concerned on a jurisdictional aspect.
After hearing proffers from each parties’ counsel but no testimony, the court
ordered Mr. Pilkington to surrender both children’s passports and ordered that, pending
trial, the children should return to their mother in Germany, with R.P. to return to Maryland
for his entire Christmas vacation at Ms. Pilkington’s expense. At Mr. Pilkington’s request,
the court agreed to include in its order a requirement that Ms. Pilkington return the children
for trial, and if not, the court would “have the trial without her.” The court’s orders,
however, do not explicitly include this mandate.
The Office of the Family Law Case Coordinator for the circuit court mailed the
parties’ respective counsel copies of the Order for Referral on October 14, 2015, ordering
the Office of Family Court Services:
1) To evaluate each party’s ability to meet the child(ren)’s needs;
2) To evaluate each party’s ability to make decisions which prioritize the
needs of the child(ren);
8
3) To evaluate each party’s ability to co-parent;
4) To evaluate each party’s attitude toward the child(ren)’s relationship
with the other party;
5) To evaluate the child(ren)’s adjustment to the current living
arrangement;
6) To evaluate the child(ren)’s past and present relationship with each
party;
7) To help the parties implement and develop a visitation schedule and to
reduce the dates and times to writing;
8) Should there be a decrease or increase in visitation;
9) Should there be a change in custody if a parent moves out of the state.
10) To update the prior evaluation.
The referral order also directed that:
[T]he Evaluator shall spend a maximum of four sessions in the evaluation of
the parties and the child or children, and that the parties to this proceeding
shall cooperate with the Evaluator in the scheduling of appointments, and if
in the judgment of the Evaluator either party shall fail to cooperate in the
scheduling of appointments, then the Evaluator shall notify the Court of this
fact; and
[T]hat the Evaluator shall have the right to terminate th[e] referral if the
Evaluator deems the referral inappropriate or the parties fail to cooperate.
Such termination shall be made by sending written notice of that fact to the
Court[.]
A hearing was scheduled for December 29, 2015, and the Evaluator along with the parties
and their respective attorneys were directed to appear.
D. The Second Custody Hearing
On October 19, 2015, Mr. Pilkington mailed Ms. Pilkington two Writs of Summons,
seeking a written response to his complaints filed in the Ex Parte Emergency Petition for
Custody and Third Party Complaint for Custody. The court held a hearing with the
evaluator on December 29, 2015. Ms. Pilkington did not attend the hearing and the
evaluator testified that Ms. Pilkington “had no contact via e-mail, letter or phone with this
9
evaluator since October the 16th of 2015[,]” despite “[n]umerous attempts . . . with no
response.” She also failed to return R.P. to his father for Christmas vacation, contrary to
the court’s September 24, 2015 order.
After the evaluator entered her report at the December 29, 2015 hearing, Mr.
Pilkington’s counsel asked the court:
[E]ither by way of enrolling the Colorado Court Order or this Court
issuing its own Order that we get a Custody Order in place in Maryland. At
that point I think [Mr. Pilkington] could take that to law enforcement and file
charges against her and then proceed to go to Germany with the aid of law
enforcement and show her the Court Order and hopefully bring back the kid.
In the interim, because there is no Court Order in Maryland in place
right now, I would ask at the very least that the Court issue a Show Cause
Order so that can be served on her prior to or in advance of the Pretrial
Conference, because we have a Pretrial Conference February the 14th so that
I can serve her with that and then if she is not going to cooperate at that point
issue a Body Attachment.
The court responded:
All right. I’m inclined to simply make a recommendation that [Mr.
Pilkington] be granted custody of the child. I mean, he is playing by the rules
and [Ms. Pilkington’s] not. I don’t see any reason why we want to keep
putting rules or making an Order for her that she is not going to obey.
***
. . . I’m a Magistrate, I’m not a Judge, but I’m going to make a
recommendation. And it probably won’t be signed [by the circuit court] until
you get to that Pretrial [February 14, 2016] because I expect [Ms. Pilkington]
will take Exceptions, but at least then a judge has got some idea what I think
should be done and maybe if they agree with me they will continue it. If they
don’t, they will fashion some other remedy.
But it is clear to mean -- I mean, to me in the list of factors as to what
makes a good custodial parent, the biggest one is which parent will best
facilitate a relationship with the other parent. It is clear to me that [Ms.
Pilkington] is not willing to do that in any shape. [Mr.] Pilkington on the
10
other hand has played by the rules and he is willing to try to keep some kind
of relationship going. He has been duped twice I would say and the Court
has been duped once that if the kids get to Germany she will let him come
back. She’s not gonna [let R.P. come back] without some intervention.
So, that is what I’m going to recommend.
The next day, December 30, 2015, the presiding magistrate issued his report and
recommendation, recommending that “[Mr. Pilkington] be granted Sole Legal and Primary
Physical Custody of [R.P.]” The magistrate’s report offered the following analysis:
At this time it seems very clear that [Ms. Pilkington] has no intention
of honoring any Maryland Court Order regarding Custody. It is her apparent
intention to completely isolate [Mr. Pilkington] from [R.P.] This Magistrate
considers [Ms. Pilkington’s] action in this matter to be extremely detrimental
to the father-son relationship between [Mr. Pilkington] and [R.P.] [Ms.
Pilkington’s] actions are definitely not in the Minor Child’s best interest.
In this case [Mr. Pilkington] has played by the rules and [Ms.
Pilkington] has completely ignored them. The Magistrate believes that [Mr.
Pilkington] will continue to facilitate a relationship between [R.P.] and [Ms.
Pilkington] if [R.P.] is in his Custody. It is obvious that the reverse of this
belief is not true.
Based on the above the Magistrate finds that it is in [R.P.]’s best
interest that [Mr. Pilkington] be granted his Sole Legal and Primary Physical
Custody. Visitation between [R.P.] and [Ms. Pilkington] should be worked
out after [Ms. Pilkington] agrees to participate in these Court proceedings.
The notice accompanying the report and recommendation explained the procedures
for filing exceptions to the magistrate’s recommendation and warned the parties that “[a]ny
matter not specifically set forth in [an] exception[] is waived unless the Court finds that
justice requires otherwise[,]” and that “[t]he Court may dismiss the exceptions of a party
who has not complied with [Maryland Rule 9-208].” The court mailed both its report and
recommendation and the corresponding notice to both parties. Mr. Pilkington’s counsel
also mailed Ms. Pilkington a copy by restricted delivery.
11
Ms. Pilkington did not respond or file any exceptions. On January 12, 2016, the
Circuit Court for Harford County adopted the Magistrate’s recommendation, issuing an
order that stated simply: “Ordered that [Mr. Pilkington] be granted Sole Legal and Primary
Physical Custody of [R.P.]” Ms. Pilkington noted her timely appeal.6
I.
DISCUSSION
A. Appeal of Interlocutory Order
There is no final judgment in the present case,7 yet we retain appellate jurisdiction
for the following reason. On September 24, 2015, Mr. Pilkington filed two separate
complaints for custody in the Circuit Court for Harford County—one for custody of R.P.
and one for custody of B.P. These two cases apparently were consolidated because, as
described supra, the September 24, 2015 custody hearing addressed the custody of both
children, and, further, both cases bear the docket number of 12-C-15-2714. On January
13, 2016, the circuit court entered an order granting “Sole Legal and Primary Physical
Custody” of R.P. to Mr. Pilkington; however, this order did not address the custody of B.P.
6
Mr. Pilkington did not file a brief with this Court in response to Ms. Pilkington’s
appeal.
7
Although there is no separate judgment or order by the court, and nothing reflected
on the docket pertaining to B.P., the record indicates that perhaps the court intended to
dismiss the complaint concerning B.P. when it stated, “[B.P.] as far as I’m concerned needs
to go back to mom.”
12
Apparently confused as to the legal effect of this order, Mr. Pilkington’s counsel
sent the court a letter on January 21, 2016, seeking clarification as to whether the court’s
“January 2016 Order is to be given effect on a pendente lite basis, or if it is a final
judgment,” and asking permission to “appear by phone at the pre-trial conference on
February 11, 2016.” The court granted the request and held a discussion telephonically off
the record. The docket then notes “Custody order previously signed. Court to close file[,]”
thereby confirming that the January 13, 2016 custody order was final as to R.P. The docket
notes that the case was closed on February 12, 2016.
We indisputably have appellate jurisdiction over the order granting sole legal and
primary physical custody of R.P. to Mr. Pilkington under Maryland Code (1973, 2013
Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), § 12-303(x) which grants a
party a right to appeal from an interlocutory order “[d]epriving a parent, grandparent, or
natural guardian of the care and custody of his child, or changing the terms of such an
order[.]” See Cabrera v. Mercado, ___ Md. App. ___, ___, Nos. 1304 & 2393, September
Term 2015, slip op. at 28. Ms. Pilkington’s February 16, 2016 notice of appeal effected a
valid interlocutory appeal.8
8
The circuit court did not grant custody of B.P. to Mr. Pilkington, and Mr.
Pilkington did not file a brief in this Court or a notice of appeal in the circuit court;
therefore, issue of the court’s jurisdiction over the custody of B.P. is not before us.
13
B. The Maryland UCCJEA
1. The Goals and Principles Underlying Maryland’s UCCJEA
In 2004, Maryland adopted the Maryland UCCJEA to govern child custody actions.9
This Court has long-recognized that the legislature adopted the Maryland UCCJEA’s
predecessor, the Maryland Uniform Custody Jurisdiction Act (“UCCJA”), “to ‘deter
abductions and other unilateral removals of children undertaken to obtain custody
awards.’” Cronin v. Camilleri, 101 Md. App. 699, 710 (1994) (quoting FL § 9-202(5)). In
Malik, we observed:
“The Prefatory Note to the U.C.C.J.A. notes a growing public concern over
the fact that thousands of children are shifted from state to state and from one
family to another each year while their parents or other persons battle over
their custody in courts of various states. Snatching children has become all
too commonplace in our mobile society. Possession of the child has
historically given one an enormous tactical advantage.”
Malik v. Malik, 99 Md. App. 521, 530 (1994) (quoting John F. Fader, II & Richard P.
Gilbert, Maryland Family Law 167 (1990)); see also In re Kaela C., 394 Md. 432, 453
(2006) (citations omitted) (“The [UCCJA] was promulgated . . . to address . . . the rampant
kidnap[p]ing of children by parents looking to relitigate custody determinations in a more
favorable forum, a tactic known as ‘seize and run.’”). In fact, this Court has explained that
“[t]he ‘home state’ provision,” in particular:
9
“The [Maryland] UCCJEA took effect on October 1, 2004, by virtue of § 2 of Ch.
502 of the Acts of 2004. It replaced an earlier statute, the Uniform Child Custody
Jurisdiction Act (“UCCJA”), which had been the controlling law in Maryland from 1975
through 2004.” Appenyo v. Appenyo, 202 Md. App. 401, 417-18 (2011).
14
was introduced to provide protection for a parent who remains in the home
state after the other parent has taken the child away. In enacting [this]
provision, the drafters of the act were attempting to mitigate the advantage
enjoyed by the party who has physical possession of the child. Jeff Atkinson,
Modern Child Custody Practice § 3.12, 192 (1986). The Commissioners’
Note to the [UCCJA] § 3 states: “The main objective [of the six month home
state window] is to protect a parent who has been left by his spouse taking
the child along[.]”
Malik, 99 Md. App. at 529.
Courts around the country—including this Court—characterize a parent’s taking of
a child as “reprehensible conduct.” Malik, 99 Md. App. at 532-33. With this in mind, the
Court of Appeals has cautioned Maryland courts to avoid perversely incentivizing parents
to use unlawful means to secure custody:
“The resolution of cases must not provide incentives for those likely to take
the law into their own hands. Thus, those who obtain custody of children
unlawfully, . . . must be deterred. Society may not reward, except at its peril,
the lawless because the passage of time has made correction inexpedient.”
In re Adoption No. 10087 in Circuit Court for Montgomery Cnty., 324 Md. 394, 410–11
(1991) (quoting Bennett v. Jeffreys, 356 N.E.2d 277, 284 (N.Y. 1976)). This Court has
echoed that sentiment when construing Maryland’s jurisdiction under the Maryland
UCCJEA. In Malik we recognized: “It is difficult to quarrel with the proposition that ‘[t]he
effect of assuming jurisdiction to determine child custody after there has been a wrongful
taking or detention may be the encouragement of child snatching.’” 99 Md. App. at 531
(citations and quotations omitted). Worse yet, the further the parent flees or more
surreptitiously they behave, the more likely they are to achieve the six-month threshold.
15
Then in 1997, the National Conference of Commissioners of Uniform State Laws
(“NCCUSL”) promulgated the model UCCJEA (“Model UCCJEA” or “Model Act”) “to
revise the UCCJA in order to coincide with federal enactments[, such as the Parental
Kidnapping Prevention Act,] and to resolve the consequent thirty years of conflicting case
law caused by states’ various enactments of the UCCJA.” Friedetzky v. Hsia, 223 Md.
App. 723, 734 (2015). The Model Act perpetuates the UCCJA’s objectives of deterring
parents from removing their children from a jurisdiction without consent. See, e.g.,
Cabrera , slip op. at 32 (quoting Model Act, § 101 cmt., 9 U.L.A. Part 1A, at 657 (1997)
(hereinafter “9 U.L.A.”) (“A chief function of the [Model UCCJEA] is to ‘deter abductions
of children.’”)). The NCCUSL’s comments to the Model UCCJEA suggest that courts
interpret the Model Act “according to its purposes, which are to:”
(1) Avoid jurisdictional competition and conflict with the courts of other
States and in matters of child custody which have in the past resulted in
the shifting of children from State to State with harmful effects on their
well-being;
(2) Promote cooperation with the courts of other States to the end that a
custody decree is rendered in that State which can best decide the case in
the interest of the child;
(3) Discourage the use of the interstate system for continuing controversies
over child custody;
(4) Deter abductions of children;
(5) Avoid litigation of custody decisions of other States in this State;
(6) Facilitate the enforcement of custody decrees of other States.
9 U.L.A. § 101 cmt. (1997) (emphasis added).
16
2. Jurisdiction under the Act
The Maryland UCCJEA instructs us to decide child custody cases in the child’s best
interest and with an eye toward disincentivizing the unlawful movement of children across
state borders, see 9 U.L.A. § 101 cmt., and to effectuate these ends, the Act imposes limits
on the courts’ traditional subject matter jurisdiction to issue orders affecting a resident-
parent’s custody rights. See, e.g., FL §§ 9.5-201, 9.5-203, 9.5-207, 9.5-208; see also Harris
v. Melnick, 314 Md. 539, 548 (1989) (quoting Brigitte M. Bodenheimer, Interstate
Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 Fam. L.
Q. 203, 213-14 (1981) (“[C]oncurrent jurisdiction in several states to modify an existing
custody judgment was a major cause of parental resort to kidnapping to gain a more
favorable judgment in a new forum.”)).
The Maryland UCCJEA’s key jurisdictional provisions are enumerated in FL §§
9.5-201 - 9.5-204. These provisions control when a state confronted with a custody action
may exercise initial jurisdiction, FL § 9.5-201; exclusive, continuing jurisdiction, FL § 9.5-
202; jurisdiction to modify an existing custody order, FL § 9.5-203; and temporary
emergency jurisdiction, FL § 9.5-204.
The Maryland UCCJEA’s jurisdictional rules restrict a state’s subject matter
jurisdiction even more severely when, as here, another state has previously issued a custody
order. The Act prohibits concurrent jurisdiction between two states to limit the occurrence
of different states creating competing custody awards. Melnick, 314 Md. at 550 (citations
and quotations omitted) (“The rule is clear and simple. There can be no concurrent
17
jurisdiction and no jurisdictional conflict between two states.”). Additionally, the
Maryland UCCJEA discourages states from exercising jurisdiction when they are not the
most convenient forum, FL § 9.5-207; or, when a parent has engaged in “unjustifiable
conduct.” FL § 9.5-208. Just as the authority to make an initial custody determination is
exclusive to a single state, only a single state may possess authority to modify an existing
custody determination. See Melnick, 314 Md. at 551-52.
3. Applying The Maryland Act
At first glance, this case presents a seeming conflict between the Maryland
UCCJEA’s purpose of protecting parents from the unjustifiable taking of their children and
the jurisdictional limitation the Act employs to accomplish that purpose. The circuit court
here determined that Ms. Pilkington’s continued behavior dictated that the cessation of her
custody rights was in R.P.’s best interest, and awarded Mr. Pilkington, a Maryland resident,
full legal custody of R.P. Ms. Pilkington now challenges the circuit court’s authority to
issue that order, arguing that the Maryland UCCJEA bars Maryland from exercising subject
matter jurisdiction to protect the custody rights of a Maryland resident.
We recognize that allowing Ms. Pilkington to challenge the underlying order can be
viewed as rewarding her attempts to deceive her co-parent and evade the rule of law. The
Maryland UCCJEA’s very purpose is to prevent parents from obtaining favorable custody
decisions by unilaterally moving their child to a new jurisdiction, and now Ms. Pilkington
relies on the statute’s home state provision meant to prohibit such conduct. But our role is
to say what the law is. “In deciding this case, we must not succumb to the allure of bad
18
facts for their tendency to create bad law.” Espina v. Jackson, 442 Md. 311, 317 (2015);
cf. Brigitte M. Bodenheimer, The Rights of Children and the Crisis in Custody Litigation:
Modification of Custody In and Out of State, 46 U. Colo. L. Rev. 495, 503 (1975)
[hereinafter “Bodenheimer II”] (“There are, to be sure, some hard cases under the [Model
UCCJEA] which will tax to the utmost a court’s ability to apply the [Model Act].”).
In construing the Maryland UCCJEA’s jurisdictional provisions, we recognize that
our discretion to interpret statutes is not unbound and that “[t]he cardinal rule of statutory
construction is to ascertain and effectuate the intentions of the legislature.” Rockwood Cas.
Ins. Co. v. Uninsured Employers’ Fund, 385 Md. 99, 108 (2005) (citation omitted). “If the
words of the statute, construed according to their common and every day meaning, are clear
and unambiguous and express a plain meaning, we will give effect to the statute as it is
written.” Jones v. State, 336 Md. 255, 261 (1994). Our goal is to give statutes their “most
reasonable interpretation, in accord with logic and common sense, and to avoid a
construction not otherwise evident by the words actually used.” Greco v. State, 347 Md.
423, 429 (1997).
C. Maryland’s Jurisdiction over R.P.
Our primary obligation is to determine whether Maryland has jurisdiction over this
custody dispute. Malik, 99 Md. App. at 526 (citation omitted) (“When presented with a
jurisdictional conflict in a child custody case, the court must . . . FIRST . . . ascertain
whether it has jurisdiction.”). The Maryland judiciary may only exercise its authority in
cases over which it has both personal and subject matter jurisdiction. Himes Associates,
19
Ltd. v. Anderson, 178 Md. App. 504, 526 (2008); Lewis v. Murshid, 147 Md. App. 199,
202-03 (2002). Personal jurisdiction is not at issue in the instant action because the father
resides in Maryland and the mother appeared by counsel to contest the action without
objecting to the court’s personal jurisdiction, thus waiving her right to do so on appeal. See
Md. Rule 2-322(a); Md. Rule 8-131(a); McCormick v. St. Francis de Sales Church, 219
Md. 422, 429 (1959) (holding that a party’s general appearance waives the right to contest
the court’s lack of personal jurisdiction). We proceed then to appraise subject matter
jurisdiction.
The statutory authority for the court’s exercise of subject matter jurisdiction over
this action was not specified in the circuit court’s ruling from the bench at the September
24, 2015 emergency hearing; or the court’s order following that hearing; or the magistrate’s
December 30, 2015 report and recommendation; or the circuit court’s custody order dated
January 13, 2016. Consequently, it is what Mr. Pilkington pleaded and what the parties
discussed during their colloquies with the court that drive our examination of the following
provisions of the Maryland UCCJEA: (1) temporary emergency jurisdiction under FL §
9.5-204; (2) exclusive jurisdiction to modify a custody order under FL § 9.5-203; and (3)
the duty to enforce a sister state’s valid custody order and visitation schedule under FL §§
9.5-303, 9.5-304.
We review de novo whether a trial court interpreted a jurisdictional statute correctly.
Cabrera, slip op. at 38-39.
20
1. Temporary Emergency Jurisdiction
Mr. Pilkington’s emergency custody motion first asked the circuit court to assume
jurisdiction under FL § 9.5-204(a), which permits a court to exercise temporary emergency
jurisdiction over a custody action “if the child is present in this State and the child has been
abandoned or it is necessary in an emergency to protect the child because the child, or a
sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” Id.
Mr. Pilkington urged the court to exercise temporary jurisdiction to uphold the Maryland
UCCJEA’s policies. He argued that the circumstances warranted temporary emergency
relief, alleging that a German official had previously questioned the legality of R.P.
remaining in Germany for a period longer than 120 days on an American passport and that
allowing him to return to Germany would subject him to unnecessary detention by German
customs officials. Ms. Pilkington responds that the circuit court could not have premised
its relief on FL § 9.5-204, because its order was not temporally limited and because that
subsection requires the lower court to communicate its order with the home state
immediately.
The Maryland UCCJEA considers an emergency to include “mistreatment or
abuse.” FL § 9.5-204. This Court has explained that this “requires some actual injury or
substantially probable threat to the victim’s physical or mental welfare.” Kalman v. Fuste,
207 Md. App. 389, 405 (2012). “[T]here is no indication that flight alone is a risk or harm
contemplated by FL § 9.5-204.” Id. at 409 n.13 (emphasis in original).
21
First and foremost, there is no indication that the circuit court accepted Mr.
Pilkington’s argument that returning R.P. to his mother carried with it the risk that German
officials would detain R.P. The court did not seem convinced that R.P., having been born
in Germany to a German mother, was not a German citizen. And, as Mr. Pilkington
concedes, R.P. “[wa]s not threatened with mistreatment or abuse.” The general public
policy considerations on which he asked the court to rely did not create temporary
emergency jurisdiction under the Maryland UCCJEA.
Second, Ms. Pilkington is mostly correct that the circuit court’s procedure and order
indicate that its assertion of jurisdiction was consistent with FL § 9.5-204. Because the
Colorado Order governed Mr. and Ms. Pilkington’s custody rights with respect to R.P., Mr.
Pilkington’s action was for the modification of an already existing order. Subsection (c)
of FL § 9.5-204 governs temporary jurisdiction over actions involving “[p]revious child
custody determinations,” requires that “any order issued by a court of this State . . . shall
specify in the order a period that the court considers adequate to allow the person seeking
an order to obtain an order from the state having jurisdiction under §§ 9.5-201 through 9.5-
203 of this subtitle.” FL § 9.5-204(c)(1). That temporary order’s effect is then limited
“until an order is obtained from the state” having initial, continuing, or modification
jurisdiction under §§ 9.5-201 through 9.5-203 of this subtitle. FL § 9.5-204(c)(2). But, as
we next explain in more detail, Colorado lacked continuing jurisdiction so Ms. Pilkington
is incorrect in her assertion that § 9.5-204(d) required the circuit court to immediately
contact the Colorado court. With that being said, however, the circuit court’s actions—
22
awarding sole legal and primary physical custody to Mr. Pilkington—takes the court’s
action outside the provisions for temporary jurisdiction under FL § 9.5-204.
2. Jurisdiction to Modify a Custody Order
As discussed supra, Mr. Pilkington’s action was for the enforcement of the
Colorado Order—an already existing custody order that another jurisdiction issued.
However, rather than enforce the existing order, the circuit court granted Mr. Pilkington
sole custody of R.P., thereby modifying the Colorado Order and implicating FL § 9.5-203,
which provides the court “[j]urisdiction to modify determination[s].” FL § 9.5-203.
Ms. Pilkington argues on appeal that Germany was R.P.’s home state under the
Maryland UCCJEA at the time Mr. Pilkington filed the underlying action. According to
Ms. Pilkington, this means that the circuit court erred by asserting jurisdiction
concurrently—which the Maryland UCCJEA prohibits—and impermissibly modifying the
Colorado Order without involving Colorado or Germany.
When a parent or guardian brings an action in Maryland for the custody or visitation
of a child and another state has already issued an operable custody order, the Maryland
UCCJEA limits the circumstances in which a Maryland court may assert jurisdiction to
modify that existing custody order. “Courts generally give the decree-rendering state a
strong presumption of continuing modification jurisdiction until all or almost all
connection with the parents and the child is lost.” Melnick, supra, 314 Md. at 554 (citations
omitted). Once both parents and the child have left the decree-rendering state, however,
“deference to the jurisdiction of the original court [is] no longer appropriate.” Id. (citation
23
and quotations omitted). Still, the Maryland court must then determine whether Maryland
is the proper state to exercise modification jurisdiction under the Maryland UCCJEA.
Section 9.5-203 governs Maryland courts’ jurisdiction to modify an existing
custody order. It provides:
[A] court of this State may not modify a child custody determination made
by a court of another state unless a court of this State has jurisdiction to make
an initial determination under § 9.5-201(a)(1) or (2) of this subtitle and:
(1) the court of the other state determines it no longer has exclusive,
continuing jurisdiction under § 9.5-202 of this subtitle or that a court of
this State would be a more convenient forum under § 9.5-207 of this
subtitle; or
(2) a court of this State or a court of the other state determines that the
child, the child’s parents, and any person acting as a parent do not
presently reside in the other state.
FL § 9.5-203 (emphasis added).
The statute thus establishes the threshold determination is whether Maryland has
jurisdiction to make an initial determination under FL § 9.5-201(a)(1) or (2) , which allow
for jurisdiction “only if:”
(1) this State is the home state of the child on the date of the commencement
of the proceeding, or was the home state of the child within 6 months
before the commencement of the proceeding and the child is absent from
this State but a parent or person acting as parent continues to live in this
State;
(2) a court of another state does not have jurisdiction under item (1) of this
subsection, or a court of the home state of the child has declined to
exercise jurisdiction on the ground that this State is the more appropriate
forum under § 9.5-207 or § 9.5-208 of this subtitle, and:
(i) the child and the child’s parents, or the child and at least one parent
or a person acting as a parent, have a significant connection with this
State other than mere physical presence; and
(ii) substantial evidence is available in this State concerning the child’s
care, protection, training, and personal relationships[.]
24
FL § 9.5-201(a)(1)-(2).
i. R.P.’s Home State
Ms. Pilkington argues that Germany was R.P.’s home state because he lived there
for more than six months prior to Mr. Pilkington’s commencement of the underlying action
and the Maryland UCCJEA treats foreign countries as states for the purposes of the
subtitles that define home state and establish jurisdiction. The Maryland UCCJEA defines
“home state” as “the state in which a child lived with a parent or a person acting as a parent
for at least 6 consecutive months, including any temporary absence, immediately before
the commencement of a child custody proceeding[.]” FL §9.5-101(h)(1).
Here, it is clear that Maryland was not R.P.’s home state because he was only in
Maryland for about three months before his father instituted the underlying action.
Because those three months fall far short of the six months that the Maryland UCCJEA
requires, R.P.’s stay in Maryland for summer vacation did not render Maryland the home
state under FL § 9.5-201(a)(1). That means we must evaluate jurisdiction under FL §§ 9.5-
201(a)(2) and determine whether, if not Colorado, another jurisdiction qualified as R.P.’s
home state.
After Ms. Pilkington challenged the court’s subject matter jurisdiction at the
motion’s hearing, the court engaged the parties in the following colloquy:
THE COURT: I’m looking at the Colorado Parent Plan. [Ms. Pilkington]
never filed a motion with the Colorado court to relocate to Germany?
25
[MS. PILKINGTON’S COUNSEL]: No, she did not, Your Honor, and nor
has this Colorado Order ever been enrolled in Maryland.
THE COURT: I assume that that will happen shortly?
[MR. PILKINGTON’S COUNSEL]: Due to the home [state] issue of six
months, I was going to file that in December when that time comes.
THE COURT: That’s the problem that I have with mom is that she didn’t
follow the Order from Colorado. Certainly with her being a German
nat[ional] it certainly is foreseeable that she would go back to where her
family is with the child, but we have a provision in [the Colorado Order] that
somebody checked off[:] neither father nor mother have current plans to
relocate with the child.
***
[MR. PILKINGTON’S COUNSEL]: I didn’t know if Your Honor needed
any additional information about the statutory law on this as far as, even if
Your Honor finds that Maryland doesn’t have jurisdiction, they can still
enforce [the Colorado Order].
THE COURT: I’m finding that we do [have jurisdiction].
***
Under the [Maryland UCCJEA] – Once again, if we didn’t have that little
intercession in Germany for over a year, clearly we wouldn’t and I would tell
you all to pack your bags and go see beautiful Colorado.
***
But we do have that. So, if you look at what state in the union has any
[jurisdiction], there is really no longer one that is clear. We look at the
contacts with this state and at this point in time you still have two states
fighting for it, one is Colorado under a continuing jurisdiction aspect and it
is their Order, et cetera, but nobody has been there for over a year. Nobody
has been here for long. The end of June and three months is all we have. So,
it isn’t terrific contact, but it certainly seems to beat anybody else in the USA.
So, I’m not concerned on a jurisdictional aspect.
26
The circuit court focused on two factual circumstances in concluding that R.P. had
no home state: (1) Ms. Pilkington violated the Colorado Order by taking R.P. to Germany;
and (2) at the time of the hearing, R.P. had not lived in any state in the United States for
over a year. We shall examine each consideration.
ii. Foreign Countries under the Maryland UCCJEA
Section 9.5-104 of the Maryland UCCJEA instructs that “[a] court of this State
shall treat a foreign country as if it were a state of the United States for the purpose of
applying Subtitles 1 and 2 of this title.” FL § 9.5-104(a). Subtitle 1 includes the Maryland
UCCJEA’s definition of home state. See FL § 9.5-101(h). Subtitle 2 includes the Maryland
UCCJEA’s jurisdictional provisions. See FL §§ 9.5-201 – 9.5-204. Consistent with these
provisions, this Court explained in Garg v. Garg that “the plain meaning of the [Maryland]
UCCJEA makes clear that the term ‘state’ applies to foreign nations[.]” 163 Md. App. 546,
594 (2005), rev’d on other grounds, 393 Md. 225 (2006). Thus, Ms. Pilkington is correct
in her assertion that the Maryland UCCJEA required the circuit court to treat Germany as
if it were a state for the purposes of determining home state jurisdiction.
Ms. Pilkington took R.P. to Germany on January 25, 2014, and the child remained
there with her until June 2015—far exceeding the six consecutive months that the Maryland
UCCJEA’s home state provision requires. See FL § 9.5-101(h). Based on the record before
27
us, therefore, Germany became R.P.’s home state on or about July 26, 2014.10 To the extent
the circuit court determined that R.P. had no home state because Germany was not a state,
its decision was legally incorrect.
iii. Unlawful Conduct and Establishing Home State
As the court concluded that R.P. had no home state, it also commented on the fact
that R.P. resided in Germany for more than six months because Ms. Pilkington failed to
abide by the Colorado Order’s express limitations on either parent’s right to relocate R.P.
unilaterally. Ms. Pilkington does not address the reason R.P. came to spend over a year in
Germany, but it gives us pause.
Ms. Pilkington removed the child from his home state of Colorado under the
auspices of Mr. Pilkington’s signed letter—the explicit terms of which only granted Ms.
Pilkington the right to remain in Germany with R.P. until February 20, 2014. Rather than
returning with R.P., Ms. Pilkington decided unilaterally to keep the child in Germany,
estranged from his father. She did this in contravention of Mr. Pilkington’s parental rights
under the Colorado Order, which required Ms. Pilkington to seek Mr. Pilkington’s
permission for all out-of-state overnight travel and to seek the custody court’s permission
10
There is an argument that the “home state” clock would not have begun to run
during R.P.’s first month in Germany since he was purportedly there on vacation, which
could constitute a temporary absence from Colorado instead of establishing a new home
state. Cf. Drexler v. Bornman, 217 Md. App. at 362 (applying a “totality of the
circumstances” test to determine whether a child’s absence is considered “temporary”
under the Maryland UCCJEA). That point, however, is moot because Mr. Pilkington
waited nineteen months to initiate suit.
28
to relocate the child’s residence to anywhere that would “substantially change[]” “the
geographic ties between the child[] and the other parent.”
Although the Maryland UCCJEA permits us to decline jurisdiction based on a
parent’s unlawful behavior, see Malik, 99 Md. App. at 532 (quoting Stevens v. Stevens, 425
A.2d 1081, 1084 (N.J. Super. Ct. App. Div. 1981) (“Since the only . . . basis for jurisdiction
in the [trial court] was established by the plaintiff removing [the child] by taking him from
the babysitter, if the trial court had entertained this action it would have frustrated the very
purpose of [the UCCJA].”)), we have no similar ability to expand our jurisdiction on that
basis.
In Malik, this Court confronted a similar set of circumstances and found that home
state jurisdiction existed. There, a mother fled Pakistan, the country in which she lived
with her child, and resettled in Maryland. 99 Md. App. at 524. By the time the father
tracked the mother to Maryland, she had already resided here with the child for longer than
six months. Id. After acknowledging that allowing a parent to create jurisdiction through
her unlawful behavior would create poor incentives, the court determined that the child’s
time in Maryland satisfied the UCCJA’s home state provision. Id. at 529-33.
Eleven years later, we followed up on the point. In Garg v. Garg, this Court
explained: “Malik makes clear that[] even if a child is improperly removed to Maryland, in
violation of a court order, Maryland may still become a ‘home state.’” 163 Md. App. at
599 (internal citations omitted). Garg continued: “We have found no support in the
UCCJA for the court’s determination that home state jurisdiction is lost when a child has
29
been impermissibly removed from one jurisdiction to another.” Id. Instead, it is solely
within the home state’s discretion to decline jurisdiction based on the resident-parent’s
unjustifiable conduct. “The Maryland [UCCJEA] does not authorize a Maryland circuit
court to decline jurisdiction on the [home state’s] behalf.” Toland v. Futagi, 425 Md. 365,
387-88 (2012).
Returning to the case on appeal, Mr. Pilkington did not ask a court to intervene until
R.P. had already resided in Germany for roughly nineteen months.11 That period more than
satisfies FL § 9.5-101(h)’s straight-forward definition that a child’s “home state” is “the
state in which [the] child lived with a parent or person acting as a parent for at least 6
consecutive months, including any temporary absence, immediately before the
commencement of a child custody proceeding.” Id.
In sum, we conclude the circumstances presented in this case do not provide a basis
under the Maryland UCCJEA for jurisdiction to modify a foreign custody order.
According to FL § 9.5-203, “a court of this State may not modify a child custody
determination made by a court of another state unless a court of this State has jurisdiction
to make an initial determination under § 9.5-201(a)(1) or (2) of this subtitle[.]” The record
demonstrates that Maryland is not the home state under § 9.5-201(a)(1), and, our analysis
under § 9.5-201(a)(2)—(“a court of another state does not have jurisdiction under item (1)
of this subsection, . . .”)—stops short once we determine that Germany was R.P.’s home
11
This total includes January 2014 through August 2015 when Mr. Pilkington
initiated proceedings in the circuit court.
30
state at the time of the hearing in this case. Accordingly, we hold that the circuit court
erred when it modified the Colorado Order.
3. Duty to Enforce a Foreign Custody Determination
i. Subject Matter Jurisdiction
Our conclusion that the circuit court’s modification of the Colorado Order exceeded
the restraints that Subtitle 2 imposed on its subject matter jurisdiction does not, however,
necessarily dispose of the underlying action. Apparently recognizing the limitations on the
court’s authority to modify a foreign custody order under the Maryland UCCJEA, Mr.
Pilkington, quoting from FL § 9.5-303, requested the court “recognize and enforce a child
custody determination of a court of another state.”12 Consequently, upon remand, the
circuit court must limit itself to the enforcement authority enumerated in Subtitle 3 of the
Maryland UCCJEA.13
As this Court noted in Kalman, supra, the Maryland UCCJEA “introduces some
jurisdictional confusion by making positive assertions as to when ‘subject matter
jurisdiction’ does (or does not) exist based solely on the [Maryland] UCCJEA itself.” 207
12
At the emergency hearing, Mr. Pilkington’s counsel reiterated: “I didn’t know if
Your Honor needed any additional information about the statutory law on this as far as,
even if Your Honor finds that Maryland doesn’t have jurisdiction, they can still enforce
that [Colorado Order].”
13
Courts must ensure that subject matter jurisdiction exists over a case at all points
of the litigation and may raise the issue, “sua sponte, at any time.” Murshid, 147 Md.
App. at 202–03 (2002).
31
Md. App. at 399 n.5. “‘[J]urisdiction’ encompasses different meanings depending upon
the context in which it is being used.” Pulley v. State, 287 Md. 406, 415 (1980). “[I]t may,
but does not necessarily always, refer to the ‘fundamental jurisdiction’ of a court, i.e., ‘the
power residing in [a] court to determine judicially a given action, controversy, or question
presented to it for decision.’” Id. (quoting Fooks’ Executors v. Ghingher, 172 Md. 612,
621 (1937). By fundamental jurisdiction, we mean “the power to act with regard to a
subject matter which ‘is conferred by the sovereign authority which organizes the court,
and is to be sought for in the general nature of its powers, or in authority specially
conferred.’” Id. at 416 (quoting Cooper v. Reynolds’ Lessee, 77 U.S. (10 Wall.) 308, 316
(1870)). See also Murshid, supra, 174 Md. App. at 205-06 (holding that a circuit court
erred when it dismissed a parent’s claim for recognition and enforcement of a foreign order
because Maryland lacked original and modification jurisdiction under the UCCJA).
In other words, the legislative restriction on the courts’ authority to issue certain
orders in certain types of cases is not necessarily coextensive with a prohibition on the
courts’ ability and competence to hear and consider those cases to begin with. Consider,
for instance, the Parental Kidnaping Prevention Act, the federal corollary to the Model
UCCJEA. Like the Model Act, the Parental Kidnaping Prevention Act “‘seems to refer to
a federal statutory grant of jurisdiction to state courts[.]’” Rogers v. Platt, 814 F.2d 683,
684 n.1 (D.C. Cir. 1987) (quoting Parental Kidnaping Prevention Act of 1979: Joint
Hearing on S.105 Before the Subcomm. On Criminal Justice of the Senate Comm. On the
Judiciary and the Subcomm. On Child and Human Development of the Senate Comm. On
32
Labor and Human Resources, 96th Cong., 2d Sess. 151 n.34 (1980) (statement of Professor
Russell M. Coombs). “[T]hey of course do not mean that,” id., because the Parental
Kidnaping Prevention Act cannot actually limit the state courts’ jurisdiction. Instead, the
statute’s jurisdictional terms “are merely economical expressions referring to the
conditions under which [arises a] federal statutory duty to enforce and not modify a custody
determination[.]’” Id. The same is true here.
The circuit courts of Maryland are courts of general jurisdiction with several sources
of subject matter jurisdiction independent of those enumerated in Subtitle 2 of the
Maryland UCCJEA. See Maryland Code (1973, 2013 Repl. Vol.), Courts and Judicial
Proceedings Article (“CJP”) § 1-501.14 Reading the Maryland UCCJEA’s jurisdictional
provisions as a bar on the circuit court’s authority to consider a custody dispute runs
counter to one of the Model Act’s main purposes: “facilitat[ing] the enforcement of custody
decrees of others States[.]” 9 U.L.A. § 101 cmt. (emphasis added). In fact, Professor
Brigitte M. Bodenheimer, the Model Act’s reporter, explained that “the jurisdictional
provision of the [Model] Act is of far less practical importance than the recognition,
enforcement, and nonmodification provisions.” Bodenheimer II, supra, at 503. We
14
CJP § 1-501 provides:
The circuit courts are the highest common-law and equity courts of record
exercising original jurisdiction within the State. Each has full common-law
and equity powers and jurisdiction in all civil and criminal cases within its
county, and all the additional powers and jurisdiction conferred by the
Constitution and by law, except where by law jurisdiction has been limited
or conferred exclusively upon another tribunal.
33
examine, then, the alternative means by which the circuit court may have granted Mr.
Pilkington relief.
ii. The Maryland UCCJEA’s Enforcement Provisions
In addition to asking the court for temporary emergency relief under FL § 9.5-204
(which we have addressed in section C.1 of this opinion), Mr. Pilkington sought relief
pursuant to the court’s enforcement powers under FL §§ 9.5-303 and 9.5-304 of the
Maryland UCCJEA. Ms. Pilkington argues briefly that FL § 9.5-304 limits the circuit
court’s authority to issuing temporary orders and the circuit court erred by not complying
with the Maryland UCCJEA’s guidelines for the issuance of temporary orders. She also
seems to suggest that the circuit court erred by enforcing the Colorado Order because Mr.
Pilkington had not registered that order in Maryland.
Subtitle 3 of the Maryland UCCJEA contains the enforcement provisions, which
impose on Maryland courts a duty to enforce foreign custody orders, FL § 9.5-303; allow
Maryland courts to temporarily enforce visitation rights, FL § 9.5-304; allow parents or
guardians to register a foreign state’s custody determinations in Maryland, FL § 9.5-305;
and permit Maryland courts to enforce any registered foreign judgment as if a Maryland
court issued the initial order, FL § 9.5-306.
a. Temporary Visitation Enforcement
Similar to her argument concerning the circuit court’s temporary emergency
jurisdiction under FL § 9.5-204, supra, Section C.1, Ms. Pilkington contends that FL § 9.5-
34
304 places temporal limits on the court’s visitation orders and requires the court to specify
how long its order will remain in effect.
Section 9.5-304 states:
(a) A court of this State that does not have jurisdiction to modify a child
custody determination may issue a temporary order enforcing:
(1) a visitation schedule made by a court of another state; or
(2) the visitation provisions of a child custody determination of another
state that does not provide for a specific visitation schedule.
(b) (1) If a court of this State makes an order under subsection (a)(2) of this
section, it shall specify in the order a period that it considers adequate to
allow the petitioner to obtain an order from a court having jurisdiction
under the criteria specified in Subtitle 2 of this title.
(2) The order remains in effect until an order is obtained from the other
court or the period expires.
FL § 9.5-304.
It is clear from this text that Ms. Pilkington is correct that FL § 9.5-304 requires the
court’s order to include specific temporal limits on the order’s effect—something the
underlying order granting sole legal and primary physical custody to Mr. Pilkington did
not do. Regardless, because the Colorado Order contained a visitation schedule, temporary
visitation enforcement would be confined to the terms of the Colorado Order under FL §
9.5-304(a)(1).
b. Enforcing Foreign Orders in Maryland
Ms. Pilkington also argues that the circuit court could not enforce the Colorado
Order because Mr. Pilkington did not register that order in Maryland. She is incorrect.
35
Subsection 9.5-303 imposes on Maryland courts a “[d]uty to enforce” foreign
custody determinations if the issuing court exercised jurisdiction in conformity to the
Maryland UCCJEA:
Recognition and enforcement of out-of-state determination
(a) A court of this State shall recognize and enforce a child custody
determination of a court of another state if the latter court exercised
jurisdiction in substantial conformity with this title or the determination
was made under factual circumstances meeting the jurisdictional
standards of [the Maryland UCCJEA] and the determination has not been
modified in accordance with [the Maryland UCCJEA].
Remedies available to enforce child custody
(b) (1) A court of this State may utilize any remedy available under other
laws of this State to enforce a child custody determination made by a
court of another state.
(2) The remedies provided in this subtitle are cumulative and do not affect
the availability of other remedies to enforce a child custody
determination.
(Emphasis added). The NCCUSL’s comments to § 303 of the Model Act explain that “a
custody determination of another State will be enforced in the same manner as a custody
determination made by a court of this State[,]” using “[w]hatever remedies are available to
enforce a local determination.” 9 U.L.A. § 303, cmt.
Ms. Pilkington does not specify the statutory provision upon which her argument
rests, but it appears she is saying the court may not exercise its non-discretionary FL § 9.5-
303 duty to enforce unless a party has registered the foreign custody judgment in Maryland.
We disagree.
36
The Maryland UCCJEA contains two separate enforcement provisions: FL §§ 9.5-
303 and 306. The latter provision, FL § 9.5-306,15 provides for the enforcement of
registered orders and works in conjunction with FL § 9.5-305, which governs the
registration of foreign custody orders. FL § 9.5-303, on the other hand, makes no mention
of registration. The logical inference that follows this distinction is that the court’s general
duty to enforce foreign custody determinations, enumerated in FL § 9.5-303, does not
require the party to have previously registered the foreign order. Ms. Pilkington’s
suggested reading would render superfluous FL § 9.5-306, and we must “construe the
statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage,
superfluous, meaningless, or nugatory.” Dep’t of Health & Mental Hygiene v. Kelly, 397
Md. 399, 420 (2007) (citations omitted).
Once again, the NCCUSL’s comments are insightful to reinforce this point. The
comment to the provision for registration of foreign custody orders (Model UCCJEA §
305), explains that the “simple registration procedure . . . can be used to predetermine the
enforceability of a custody determination[,]” and “should be . . . an aid to pro se litigants[,]”
as well as foreign custodial parents. 9 U.L.A. § 305, cmt. The drafters envisioned a
15
In full, FL § 9.5-306 states:
(a) A court of this State may grant any relief normally available under the
law of this State to enforce a registered child custody determination made
by a court of another state.
(b) A court of this State shall recognize and enforce, but may not modify,
except in accordance with Subtitle 2 of this title, a registered child
custody determination of a court of another state.
37
situation where a foreign parent uses the registration process to pre-determine that a
jurisdiction will recognize a foreign custody order “before ever sending the child to the
United States for visitation”—let alone before the filing of an enforcement action. See id.
Registering a custody order may save costs and simplify litigation. A parent cannot
challenge the validity of a properly registered foreign order during an action for
enforcement under FL 9.5-30616 because FL § 9.5-305 “precludes further contest of that
order with respect to any matter that could have been asserted at the time of registration.”
In sum, there is no indication in the Act’s language or the drafter’s comments that
registration is mandatory, and consequently, in the instant case, the failure to register alone
would not have barred the court’s enforcement authority under FL § 9.5-303.
We recognize, however, that, as with many cases of this nature, it may be that
Maryland is not the best state to enforce the Colorado Order. There certainly are practical
impediments to enforcement of the Colorado Order in Maryland. Yet, we make the
following observations for guidance should Mr. Pilkington pursue his claim further upon
remand. As we have established, the Maryland Court is limited to enforcing the terms of
the Colorado Order. That order provides, inter alia, that Mr. Pilkington’s custody of R.P.
is limited to 170 days per year—giving Mr. Pilkington the benefit of the internal calculation
error in the Colorado Order (100 days or 170). This means that under the Colorado Order,
Mr. Pilkington is not entitled to custody of R.P. for a period of time sufficient to confer
16
FL 9.5-306 (a) provides that a court “may grant any relief normally available
under the law of this State to enforce a registered custody determination[.]”
38
home state jurisdiction in Maryland (180 days). The circuit court below, therefore, did not
err in returning R.P. to the home state of Germany. Assuming R.P. is still in Germany, we
further recognize the practical constraints on the circuit court’s enforcement authority.
However, this opinion does not preclude, on remand, consideration of any evidence of
changed circumstances that tend to establish jurisdiction in Maryland under Subtitle 2 (e.g.,
Germany is no longer the home state, FL § 9.5-203; Germany has exercised its discretion
not to assert jurisdiction based on Ms. Pilkington’s conduct, FL § 9.5-208; Germany has
decided that Maryland is a more convenient forum, FL § 9.5-207; or an emergency exists
that would establish temporary emergency jurisdiction, FL § 9.5-204).
D. Appellant’s Remaining Claims
Because we have vacated the circuit court’s order modifying the parties’ custody
rights, we need not address Ms. Pilkington’s three remaining claims concerning the
propriety of that order.
ORDER MODIFYING CUSTODY
VACATED. CASE REMANDED TO
THE CIRCUIT COURT FOR
HARFORD COUNTY FOR
FURTHER PROCEEDINGS
CONSISTENT WITH THIS
OPINION. EACH PARTY TO PAY
THEIR OWN COSTS.
39
Pilkington v. Pilkington, II
Court: Court of Special Appeals of Maryland
Date filed: 2016-11-29
Citations: 149 A.3d 661, 230 Md. App. 561
Copy Citations