Cabrera v. Mercado

⁴⁴ Leahy, J. This appeal concerns a marriage gone wrong, allegations of abuse, and an infant who was taken by one parent to live in another state without the other parent’s knowledge or consent. The circumstance is one that the federal Parental Kidnapping Prevention Act (the “Parental Kidnapping Statute”), 28 U.S.C. § 1738A (2012), and the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Maryland Code (1984, 2012 Repl. Vol.), Family Law Article (“FL”), § 9.5-101 et seq., were enacted to prevent. 1 A.M.C. 2 was born in June 2014 to Appellant Sugheil Cabrera and Appellee Nelson Mercado—a married couple living in Rockville, Maryland. Four months later, Ms. Cabrera filed a petition for a protective order against Mr. Mercado in the District Court of Maryland.

The district court issued a temporary protective order (“TPO”) granting temporary custody of A.M.C. to Ms. Cabrera, with visitation to Mr. Mercado. At Ms. Cabrera’s prompting, the parties asked the court to postpone the scheduled merits hearing, and meanwhile, Mr. Mercado’s visits -with his son continued every other day without any problems. When Mr. Mercado and his attorney appeared at the merits hearing, they learned that Ms. Cabrera had sent her attorney ⁴⁵ to dismiss the case without explanation. Soon after, they discovered Ms. Cabrera had fled to Puerto Rico—with A.M.C. On the very day her attorney dismissed the case in Maryland, Ms. Cabrera filed a complaint for custody in the superior court in Puerto Rico.

In response, Mr. Mercado quickly filed a complaint for custody and divorce in the Circuit Court for Montgomery County. These filings unleashed a jurisdictional battle over the custody of A.M.C. between the parents, and between the states 3 in which they now reside. Although several custody and affiliated orders have been entered in both Puerto Rico and in Montgomery County, Maryland, this appeal brought by Ms. Cabrera springs mainly from the final custody order entered in favor of Mr. Mercado in the Circuit Court for Montgomery County. 4 Central to the issues Ms. Cabrera raises on appeal is the question of jurisdiction over A.M.C. under the UCCJEA and the Parental Kidnapping Statute. We hold that Maryland is the child’s “home state” under both statutes, and that Maryland already made the initial custody determination by the time Ms. Cabrera filed her complaint in Puerto Rico.

Accordingly, the circuit court did not err or abuse its discretion in entering an emergency temporary custody order or a final custody order in Mr. Mercado’s favor. BACKGROUND A. Dismissal of Petition for Protective Order Ms. Cabrera and Mr. Mercado 5 were married on December ⁴⁶ 12, 2013 in Rockville, Maryland. The couple resided in Clarksburg, Maryland, and both were employed at the National Institutes of Health (“NIH”) in Rockville, Maryland. 6 Their only child, A.M.C., was born on June 21, 2014. On October 25, 2014, Ms. Cabrera petitioned the District Court of Maryland in Montgomery County for a protective order—for herself and A.M.C.—against Mr. Mercado.

In the petition, Ms. Cabrera claimed that she “feared for [her] safety” and that Mr. Mercado was “threatening, harassing and intimidating [her] for some time now[,] and it has become a pattern _” She further alleged that Mr. Mercado had displayed a pattern of obsessive activity, that she felt “stalked and harassed,” and that he had been tracking her activities. Specifically, Ms. Cabrera described two incidents that she claimed occurred on October 24 and 25, 2014: This morning while I as leaving the house my husband blocked my entrance^] Also while I was putting the baby in the carseat[,] he pushed the car door attempting to hurt me when I asked him for some space while securing the baby in the car. * * * Last night (10/24) I arrived home at 8:30 pm and he snatched the baby away from me the minute I walked in the house. He was questioning me where was I saying “God knows what you’ve been doing and who you’ve been with[.]” He made a threat that “I would know what he had for me in due time[.]” I replied saying that I wasn’t going to get intimidated by him. ... Ms. Cabrera complained that she was being subjected to Mr. Mercado’s general pattern of controlling behavior, including that he listened to her phone calls, that his body language was ⁴⁷ intimidating, and that he had “snatche[d]” A.M.C. from her arms.

She also included complaints that more reflected anger or frustration rather than fear, such as her allegations that Mr. Mercado “[d]oesn’t take his fa[ir] share of responsibilities” and “refuses to help with childcare and/or housework” and that she “constantly needs to remind [Mr. Mercado] to put the money in the household account.” The only allegations she presented in the petition that were in any way directed toward A.M.C.—rather than toward herself—were that Mr. Mercado “likes to snatch the baby from [her] when [she’s] holding him[,]” and that he raises his voice at A.M.C. when the baby gets fussy. The district court issued an ex parte interim protective order for the benefit of Ms. Cabrera and A.M.C. against Mr. Mercado on October 26, 2014. The order, by its terms effective only through October 28, stated that there were “reasonable grounds to believe” Mr. Mercado had committed the offenses of assault and stalking, and ordered that Mr. Mercado not abuse, threaten, harass, contact, or attempt to contact Ms. Cabrera. The order further directed Mr. Mercado vacate and stay away from the couple’s Clarksburg residence, and granted Ms. Cabrera temporary use and possession of the home.

Mr. Mercado abided by the protective order and immediately left the house upon receiving a copy. At the ensuing protective order hearing on October 28, 2014, Mr. Mercado and his counsel appeared along with Ms. Cabrera. The district court issued a TPO at the conclusion of the hearing. Similar to the interim protective order, the TPO recited the district court’s finding that there were reasonable grounds to believe Mr. Mercado had assaulted Ms. Cabrera on October 25, 2014.

The TPO ordered that Mr. Mercado not abuse, threaten to abuse, harass, or contact Ms. Cabrera, and further ordered that he stay away from Ms. Cabrera’s residence and place of employment. Notably, the TPO awarded custody of A.M.C. to Ms. Cabrera until the final protective order hearing, which was scheduled for November 5, 2014, and allowed for a three-hour supervised visitation session on November 1, 2014. ⁴⁸ Ms. Cabrera, Mr. Mercado, and their respective attorneys appeared for the scheduled proceeding on November 5, 2014, and requested the district court extend the term of the TPO to November 17, 2014. According to Mr. Mercado, he agreed to this postponement so that the parties could negotiate visitation with A.M.C. on their own. The amended TPO provided for six visitation sessions between November 5 and November 14, 2014. 7 On the morning of November 17, 2014, Mr. Mercado and his counsel appeared in court.

Ms. Cabrera did not appear. Instead, Ms. Cabrera’s counsel appeared and requested dismissal of the petition for protective order without explanation. The district court dismissed the case. 8 B. Flight to Puerto Rico Ms. Cabrera fled to Puerto Rico with A.M.C., without Mr. Mercado’s knowledge or consent, on November 15, 2014—just two days prior to the scheduled hearing that was extended at her request. The same day that Ms. Cabrera’s petition for protective order was dismissed, on November 17, 2014, Ms. Cabrera filed a complaint for custody of A.M.C. in the Superi- or Court of Puerto Rico for the Judicial Region of Bayamon. 9 The complaint alleged that Mr. Mercado “exhibit[ed] a pattern of domestic violence” that made cohabitation impossible.

The complaint further alleged: 9. That [Mr. Mercado] is a citizen of Bolivia[ 10 ] and although he holds U.S. citizenship, he has expressed his desire to ⁴⁹ move the minor out of the jurisdiction, without the consent of [Ms. Cabrera]. 10. That [Ms. Cabrera] fears that [Mr. Mercado] will remove [A.M.C.] from our jurisdiction without her consent, impeding in this manner the efforts on the part of [Ms. Cabrera] to exercise physical and legal custody, and prolonging any legal proceedings related to the custody of the minor. The complaint also asserted that Mr. Mercado “does not show domestic behavior appropriate for his son’s upbringing, risking in this manner the physical and emotional health of the minor.” And, that he “faces serious behavioral problems, behaving in a violent manner physically and psychologically preventing him from offering the ideal conditions for the minor.” The complaint requested, inter alia, (1) a temporary custody order in favor of Ms. Cabrera until a final order was issued; (2) a temporary order forbidding the removal of A.M.C. from Puerto Rico; and (3) a final custody order in favor of Ms. Cabrera.

Ms. Cabrera made no mention in the complaint she filed in Puerto Rico of the fact that she had previously filed a protective order petition in Maryland that had granted her temporary custody of A.M.C. Mr. Mercado was personally served, in Maryland, with the Puerto Rican summons (although there is some ambiguity in the record concerning the specific documents that were served on him), but he filed no responsive pleading. He does not contest that he was served. C. Mr. Mercado’s Emergency Motion for Custody and Return of Child On November 21, 2014, Mr. Mercado initiated the underlying action on appeal by filing an Emergency Motion to Return Child to Maryland and Emergency Motion for Temporary Custody (“Emergency Motion”), along with a complaint for divorce, custody, and child support in the Circuit Court for ⁵⁰ Montgomery County. 11 In his complaint, Mr. Mercado “contested] the jurisdiction of the Commonwealth of Puerto Rico[,]” stating that he “has never been a resident nor domiciled in nor had contacts with such jurisdiction [and that] Puerto Rico is [Ms. Cabrera]’s Territory of birth to which she has absconded with [A.M.C].” The complaint requested that Mr. Mercado be granted, inter alia, (1) a limited divorce; (2) pendente lite and permanent custody of A.M.C.; and (3) various relief relating to marital property and the family residence. In the Emergency Motion, Mr. Mercado “adamantly challenge[d Ms. Cabrera]’s claim of abuse” and stated that Mr. Mercado “has been a kind, caring spouse and good father.” He asserted that Maryland was A.M.C.’s home state pursuant to the Maryland UCCJEA and that Maryland “has exclusive, continuing jurisdiction over custody of [A.M.C].” As such, he asserted in the Emergency Motion that Maryland was “the proper forum for a merits determination of custody and access,” and requested that he be granted temporary legal and physical custody of A.M.C. and that A.M.C. be returned to Maryland.

Mr. Mercado stated in the Emergency Motion that he had notified Ms. Cabrera by email and regular mail of the scheduled proceeding on the motion to be held on November 24, 2014. Just prior to the hearing on November 24, 2014, Mr. Mercado supplemented the Emergency Motion with a certification and several attachments demonstrating that his counsel had sent Ms, Cabrera’s counsel in Maryland and her counsel in Puerto Rico notice of the hearing along with the writ of summons, a copy of the custody and divorce complaint, and a copy of the Emergency Motion. The circuit court held a hearing on the Emergency Motion on November 24, 2014. Mr. Mercado appeared with counsel, and neither Ms. Cabrera nor counsel appeared, Mr. Mercado testified that he had abided by the terms of the protective ⁵¹ order and that no problems had occurred during any of the scheduled visitation sessions.

He further testified that Ms. Cabrera had said that she was going to Richmond, Virginia, the weekend she actually left for Puerto Rico. He also testified that he received “paperwork” on November 18, 2014, stating that Ms. Cabrera had initiated a custody action in a Puerto Rico court. Mr. Mercado denied Ms. Cabrera’s allegations of domestic violence. He stated that the first time he learned that his wife was in Puerto Rico was when a friend of Ms. Cabrera’s called him to tell him that she had not heard from Ms. Cabrera since she traveled to Puerto Rico.

After hearing Mr. Mercado’s testimony, the court stated that the allegations of domestic violence complicated what would otherwise be a relatively straightforward problem—Ms. Cabrera’s disappearance with the child. But, the court also noted (from Ms. Cabrera’s petition for protective order) that there did not appear to be any concerns about A.M.C.’s safety with Mr. Mercado or “anything in the[ ] pleadings that would rise to the level of there being an allegation of some unsafety with the child.” Counsel for Mr. Mercado requested a temporary custodial order. The circuit court judge then announced her ruling: I’m prepared to find on the basis of what I have here, which is, admittedly, one side of the story for the most part— although I do have some of what Ms. Cabrera told the court, at least about the circumstances of the filing that she made with the protective order, and I just said, there doesn’t seem to be any allegation of concern about the way the baby was being treated by Mr. Mercado—Ms. Cabrera obviously felt like she was being disrespected. Her pleadings alleged stalking and, that may be what she sensed was happening.

But at least as far as the child is concerned, I don’t see any allegation of bad behavior, ... It does seem to me that a temporary emergency custody order is in order. Whatever else is true. The way to solve these problems is not to run to another jurisdiction. ⁵² Fortunately, Puerto Rico is a place that we have some ability to reach.

So what I’m going to do is grant that request for temporary emergency custody of the child, but also say that Ms. Cabrera is entitled to a hearing on 48 hours’ notice with regards to that order. I’ll also direct law enforcement to use all reasonable force, if necessary, to return the child to his father for this temporary emergency custody purposes only. ... [0]bviously, if Ms. Cabrera learns of this order and voluntarily returns with A[M.CJ, it’s probably the best of all circumstances, and then perhaps we can deal with this in some organized, practical fashion. And it’s not really a question, I don’t think, of home state jurisdiction, but I think the law is clear that even though [A.M.C.] is not yet 6 months, you know, the place where he’s residing is his home state. So I’m happy to sign such an order.

On November 25, 2014, the court, “satisfied that [Mr. Mercado] made good faith attempts to provide notice of this appearance to [Ms. Cabrera]” entered an emergency temporary custody order directing: (1) that Ms. Cabrera immediately surrender A.M.C. to the temporary physical and legal custody of Mr. Mercado until further order of the court; (2) that A.M.C. not be removed from Maryland; and (3) that Ms. Cabrera is entitled to a hearing on 48 hours’ notice to Mr. Mercado. On December 27, 2014, a process server served Fernando A. Cabrera Balasquides—Ms. Cabrera’s father—with the Maryland emergency temporary custody order; the writ of summons; the complaint for divorce, custody, and child support; and other documents. According to the affidavit of service, the process server served Mr. Cabrera at Ms. Cabrera’s “dwelling house or usual place of abode, at Club Drive J-4 Garden Hills, Guaynabo, PR 00966 with a resident of suitable age and ⁵³ discretion[.]” 12 The affidavit of service describes the following incident: Deliver to the father of the recipient, when the [process server] arrives to the home also the mother of Sugheil Cabrera have the kid in her arms and a[s] soon see the Process Server she yell[s] to his husband close the garage door and put the baby down on the floor to avoid that the [process server] see the baby, but [process server] see the baby and proceed the serve the papers to the father who tell to the [process server] that he was not the father of Sugheil, the [process server] indicated that he knows i[t’]s him because have seen him in photos and also see the mother in photos. He ask to[ t]he [process server] how he enter.. the [process server] explain[s] that they can[’]t hide behind the gate community control access.

D. Further Proceedings in Puerto Rico The Puerto Rico court held a hearing on January 15, 2015, on the default order that had been entered against Mr. Mercado. According to “Minutes” produced describing the hearing, Ms. Cabrera and her counsel appeared, and Mr. Mercado did not appear. Ms. Cabrera’s counsel moved for temporary custody of A.M.C. and an order that A.M.C. not be removed from Puerto Rico, which the court granted. Ms. Cabrera also moved for a default judgment against Mr. Mercado.

The final hearing was scheduled for March 25, 2015, and the Puerto Rico judgment that was eventually entered stated that Mr. Mercado was notified of the hearing at his “address of record.” E. Motion to Decline Jurisdiction in Maryland On March 18, 2015, Ms. Cabrera’s counsel entered an appearance in the circuit court on behalf of Ms. Cabrera. 13 ⁵⁴ Ms. Cabrera’s counsel also moved to vacate the emergency custody order; this motion was denied. Two days later, on March 20, Ms. Cabrera’s counsel filed a motion requesting the Maryland court to decline subject matter jurisdiction under the UCCJEA and vacate the emergency custody order. In the motion, Ms. Cabrera implicitly conceded—by not attempting to argue the point—that Maryland was A.M.C.’s home state, but nonetheless argued that Maryland should decline jurisdiction under the UCCJEA because (1) Maryland was an inconvenient forum and (2) Puerto Rico was a more appropriate forum to determine custody and visitation. She contended that Puerto Rico was a more appropriate forum because (1) domestic violence had occurred in Maryland and Puerto Rico could best protect Ms. Cabrera and A.M.C.; (2) A.M.C. had lived in Puerto Rico for the last four months; (3) Ms. Cabrera is the custodial parent, and the noncustodial parent is in a better position to litigate in a foreign jurisdiction; (4) it would be an financial hardship for Ms. Cabrera to litigate in Maryland; (5) no agreement existed between the parties to litigate in Maryland; (6) the evidence required to resolve the custody dispute is located in Puerto Rico; (7) Puerto Rico can decide custody and visitation more expeditiously and economically; and (8) Puerto Rico is more familiar with the facts and issues of the case.

Ms. Cabrera further observed in her motion that a Puerto Rico court had already asserted subject matter jurisdiction over the matter, insisting that [a]ny order entered in this Court will merely be in conflict with the orders previously issued by the Puerto Rico Court. Puerto Rico has already assumed jurisdiction over matters related to custody and visitation, it has already issued a temporary order directing that custody be awarded to [Ms. Cabrera] and that the minor child may not be removed from the jurisdiction of the Puerto Rico court, and it is scheduled to address these matters in a final adjudication on March 25, 2015. Any order issued by a Maryland Court will be of no practical effect. (Emphasis added). ⁵⁵ Finally, Ms. Cabrera argued that the November 25, 2014 emergency custody order should be vacated because (1) she disputed service and (2) the circuit court was not empowered to enter the order when proceedings had already begun in another jurisdiction, as they had in this case in Puerto Rico.

A hearing was set for this motion on May 15, 2015. F. The Puerto Rican Final Custody Order At the March 25, 2015 hearing in the superior court in Puerto Rico, Ms. Cabrera appeared once again with her counsel, and Mr. Mercado did not appear. The court received the following documentary evidence: (1) A.M.C.’s birth certificate; (2) the TPO from the Maryland district court; 14 and (3) the divorce, custody, and child support complaint filed by Mr. Mercado in the circuit court. Ms. Cabrera also testified, and apparently the court found her credible.

The Puerto Rico court entered judgment and issued a memorandum opinion in which the court stated that Mr. Mercado 15 incurred in [sic] domestic violence actions against [Ms. Cabrera], during her pregnancy as well as after the birth of the minor. Said actions consisted in pushes, hair-pulling, verbal abuse and strikes with the door of her motor vehicle, which caused physical and emotional damages to [Ms. Cabrera]. Likewise, [ ] Mr. Mercado incurred in physical and emotional abuse against his son, consisting in shouts, locking him in a dark room and threatening to take him down to ⁵⁶ the basement of the residence, all the above in order for [A.M.C.] to stop crying.[ 16 ] The court described the proceedings that had occurred in Maryland courts up to that point, as well as Ms. Cabrera’s flight from Maryland to Puerto Rico on November 15, 2014, and then found that Ms. Cabrera’s relatives in Puerto Rico were helping support her and A.M.C. The court noted that it was not Ms. Cabrera’s intention “to go back to continue living in [Maryland,]” and found that Ms. Cabrera had maintained her employment in Maryland through telecommuting. 17 The court concluded that it “ha[d] jurisdiction over [Mr. Mercado] inasmuch as the summons was served with the complaint personally to him on November 18, 2014[,]” and that Ms. Cabrera’s allegations “[we]re accepted as proven” because Mr. Mercado had not filed any responsive pleading. The court recognized that the Parental Kidnapping Statute governed the court’s decision, and recited the parameters under the statute for determining jurisdiction.

Notably, the court’s opinion stated that the Parental Kidnapping Statute provides: (c) A determination on custody or on visiting rights made by a court from a state is consistent with the requirements of this section only if: (1) Said court has jurisdiction under the laws of its state; (2) It complies with one of the following conditions: (A) That state: i. is the state of residence of the minor as of the date the procedures started, or ⁵⁷ ii. has been the state of residence of the minor six (6) months before the date when the procedures started (Emphasis supplied). 18 Relying on this interpretation of the Parental Kidnapping Statute, the court then concluded that Puerto Rico had jurisdiction over the custody case: ... there not being any custody decision from another state in effect at this time, having established the present ground before to the one submitted in the state of Maryland by [Mr. Mercado], and this Court having jurisdiction over [Mr. Mercado] since it was summoned pursuant to the laws of Puerto Rico, and having evidence of having [Ms. Cabrera] been the object of domestic violence, as well as of abuse toward the minor, both by [Mr. Mercado], and there being no doubt that this Court not only has jurisdiction to attend this case, but that its determination shall receive the full faith and credit of other jurisdiction, pursuant to the [Parental Kidnapping Statute]. (Emphasis added). Although the certified translation of the opinion is far from clear, the Puerto Rico court seemed to believe that it had not ⁵⁸ just temporary emergency jurisdiction—but jurisdiction to decide the entire child custody proceeding under the Parental Kidnapping Statute based on its findings that (1) Puerto Rico was the child’s current residence, 19 (2) there was no prior custody decision from another state in effect at that time, (3) Ms. Cabrera alleged domestic violence, and (4) Mr. Mercado had been served in Maryland. The court proceeded to grant legal custody of A.M.C. to Ms. Cabrera and stated that “[t]he transfer of [A.M.C.] ... out of the Puerto Rican jurisdiction, without the prior authorization of this Court, is hereby forbidden.” The court apparently did not consider whether the TPO constituted a custody determination, 20 nor did it consider the definition of “home state” under the Parental Kidnapping Statute, relying instead on its finding that Puerto Rico was the child’s current residence.

G. The Battle Over Jurisdiction Continues in Maryland On May 5, 2015, Ms. Cabrera filed a request for registration of the Puerto Rico order in the Circuit Court for Montgomery County. The clerk of the court entered a notice of registration of the foreign custody determination on May 7, 2015, stating that it is enforceable as of the date of registration. On May 20, 2015, Mr. Mercado timely filed a motion contesting the registration of the foreign judgment. 21 On May 8, 2015, Ms. Cabrera also filed a motion to appear by telephone in the scheduled pendente lite hearing. Ms. Cabrera’s motion stated: ⁵⁹ 6.

Defendant, Sugheil Cabrera, wishes to make herself available and participate in this case.... 7. Defendant will make herself available from Puerto Rico to this Court on May 15, 2015 in the event the Court has any questions. Defendant will testify at the pendente lite hearing from Puerto Rico on June 1, 2015 and will give her testimony regarding her income and expenses, and access for purposes of the Court deciding pendente lite child support and access. ⅜ ⅜ ⅜ 9. Transmission of [Ms. Cabrera]’s testimony will be by speaker phone. 10.

Requiring the personal appearance of Defendant would cause undue hardship by having her have to fly back from Puerto Rico, and leave behind the minor child, who is still being breast-fed by [Ms. Cabrera], in order to testify. Ms. Cabrera then requested that she be allowed to appear by telephone in both the hearing on her motion to decline jurisdiction set for May 15, 2015, and the pendente lite hearing set for June 1, 2015. Mr. Mercado filed an opposition to the motion to appear by telephone on May 13, 2015. In the motion, he argued that Ms. Cabrera continues to defy the November 25, 2014 circuit court custody order and that Ms. Cabrera has not shown good cause for absence from the proceedings.

He further argued that Ms. Cabrera must appear in person so that he has the opportunity to conduct face-to-face cross examination of her because the court’s “assessment of [Ms. Cabrera]’s demeanor and credibility are critical to [ ] the determination of the best interests of the child in these proceedings.” Mr. Mercado further observed that Ms. Cabrera’s motion was untimely because it was not filed 30 days before the hearing, as Maryland Rule 2-513(c) requires. At the May 15, 2015 hearing on the motion to decline jurisdiction, Ms. Cabrera’s counsel argued that (1) Ms. Cabrera had not been properly served; (2) Mr. Mercado has chosen not to participate in the Puerto Rico proceedings; (3) there is a ⁶⁰ final judgment in Puerto Rico giving custody to Ms. Cabrera that should control; and (4) under the Parental Kidnapping Statute, Puerto Rico had jurisdiction. The court engaged Ms. Cabrera’s counsel in the following exchange regarding the jurisdiction over the case: THE COURT: ... I think [ ] the problem here is that there’s a disconnect between what happened in Puerto Rico and what you’re asking me to do. [MS.

CABRERA’S COUNSEL]: Why is that, Your Honor? THE COURT: Well, I think the reason for that is because Puerto Rico has proceeded without much regard to whether I declined or [did] not decline[] jurisdiction. But if this Court comes to the conclusion that we do still have jurisdiction, then I’d be interested to know what happens next, since it didn’t seem to matter the first time. [MS. CABRERA’S COUNSEL]: Well, that is actually the problem, Your Honor, and quite frankly the point is that if this Court— THE COURT: That I should just wave the white flag because they proceeded regardless? [MS.

CABRERA’S COUNSEL]: No, Your Honor. THE COURT: Okay. [MS. CABRERA’S COUNSEL]: And I understand, yes, that you can say that, but in essence what this Court does is not going to impact what Puerto Rico does. Now you know, under the UCCJEA there’s a provision for the courts to speak to each other.

THE COURT: Right. [MS. CABRERA’S COUNSEL]: And that may be an appropriate thing to do here. THE COURT: I think it might. [MS. CABRERA’S COUNSEL]: And we certainly, I mean— THE COURT: Yes. [MS.

CABRERA’S COUNSEL]:—there’d be no reason not to have that attempt. It is our position, based on the way the court evaluated it, that the court at this point in time in Puerto Rico ⁶¹ has decided that it doesn’t care what Maryland does. And so if Maryland were to continue with this dispute, I think that’s what you’re outlining here, and it will be of no real effect, and we point that out in our proceedings. (Emphasis added).

Ms. Cabrera’s counsel further argued that a UCCJEA state cannot assert jurisdiction if another state has already asserted jurisdiction. The colloquy on jurisdiction continued: THE COURT: So this is an ex parte proceeding in a circumstance that we would say didn’t provide fair notice or didn’t comply with what we would say the rules are. [MS. CABRERA’S COUNSEL]: I don’t know why we would say that, because he was served in person, an order of default was entered in that case— THE COURT: Yes, right. That’s fine, except for that that’s not actually how we would say this would proceed.

So how we would say this would, first of all what jurisdiction does the Puerto Rico court have over this gentleman? None that I can think of. So he had actual notice, that’s swell, but I don’t know what difference that makes as far as jurisdiction [i]s concerned. Meanwhile, there is a basis for jurisdiction here, and the thing that troubles me about this whole analysis that you’re giving me is that it’s exactly what these acts were designed to avoid, which is this kind of, and it happens unfortunately all over the world, one would have hoped not in Puerto Rico, but so be it.

That people, countries, proceed with their own set of rules about whether a child should be returned to the place from which they were removed without consent of both parties, which is what I think happened here. I think your client left the, she may well have had her reasons, but part of the reason that we do this with two sides available is so that we get both sides of the story. (Emphasis added). Mr. Mercado defended Maryland’s jurisdiction over the custody matter, insisting that Maryland was AM.C.’s home ⁶² state and the protective order petition—not the Puerto Rico custody complaint—was the first custody proceeding in this case.

The judge reserved on the motion to decline jurisdiction until after she had an opportunity to speak to the judge of the superior court in Puerto Rico. 22 Meanwhile, in her ruling, the judge declined to rescind the November 25, 2014 emergency custody order. At the scheduled pendente lite hearing before a magistrate on June 1, 2015, Ms. Cabrera once again appeared through counsel. Ms. Cabrera’s counsel stated that there was nothing that could be resolved at the pendente lite hearing and requested that the pendente lite claims be dismissed. Mr. Mercado responded that there is no provision in the UCCJEA allowing a party to not appear and instead participate by telephone.

Importantly, he requested that the court issue a body attachment for Ms. Cabrera because she was in violation of the subpoena duces tecum that had been issued to her directing her to appear with the requested documents at the scheduled pendente lite hearing. Ms. Cabrera’s counsel requested the subpoena be quashed. Given the request for a body attachment, the magistrate judge referred the parties back to the circuit court judge who resumed the pendente lite hearing later that morning. The judge stated that she had not been able to reach the Puerto Rico judge, who was on vacation, but she hoped to be able to do so soon.

As a result, the judge declined to rule on the request to dismiss the pendente lite relief, stating that it “is not appropriately before [the court] at this point” because she had not been able to reach the Puerto Rico judge. The judge also reserved on the motion to quash and the motion to appear by telephone, stating, again, that she did not want to rule on these issues until she was able to communicate with the judge in Puerto Rico. The judge further stated that she was inclined ⁶³ to grant the body attachment, but reserved on this issue as well. The next hearing occurred on June 3, 2015, after the circuit court judge was able to speak with the judge in Puerto Rico.

The judge began by summarizing her discussion: So I did finally speak to [the Puerto Rico court] about the status of things, just to try to get a lay of the land between courts, as the UCCJEA provides. The PKPA also provides for this. I think I’d say in summary that [the Puerto Rico court’s] position is that, while, well, I think the short summary would be this, that he doesn’t have a pleading in front of him that would request the relief that [Mr. Mercado] here seeks. ... I’m paraphrasing here ... is that without a pleading in front of him detailing what occurred procedurally, and what the facts are with regard to this set of proceedings - He has some information about it.

He knew about the protective order. He knew about the emergency custody order. But he reminded me, and I think it’s worth saying here, that the order he issued has the somewhat unusual provision in it that prohibits the child’s removal from Puerto Rico without further court order, which juxtaposed against Ms. Cabrera’s desire to return to the United States to work, seems like a problem. (Emphasis added).

The judge explained to those present at the hearing, that she and the Puerto Rican judge did not come to any agreement, except to acknowledge that they had a forum non conveniens issue, even if there wasn’t a subject matter jurisdiction issue. Nevertheless, she explained why she was so uncomfortable surrendering jurisdiction: I was direct with [the Puerto Rico court] and told him that I thought while there’s probably not a whole lot to question about the emergency jurisdiction, given what was presented to the court there, that doesn’t confer subject matter jurisdiction. And this I think is the place where the ⁶⁴ dichotomy between the PKPA and the UCCJEA may be holding us up a little bit.... I have no way to undo or stop the Puerto Rico proceeding.

However, ... I have no question that we have subject matter jurisdiction. So then what happens next is that the only way to have the conversation ... about the forum non[ ]convenien[s] issue, is for there to be a presence in both jurisdictions of a request to do something, because in Puerto Rico at the moment, there’s no request for anybody to do anything. Of course if Ms. Cabrera wants to come back to the U.S. with the child, she needs the court’s permission there, which is an interesting circumstance.

There was a request earlier this week ... to the magistrate, about the issuance of a body attachment for Ms. Cabrera. I’m inclined to do that, because I, and I need to be clear on the record why I’m inclined to do it, ... and I desperately don’t want to do it, but why I’m inclined to do it. I think Ms. Cabrera has manipulated the system. I think Ms. Cabrera has taken advantage of a process and one exactly what the Parental Kidnapping Prevention Act, the UCCJEA, and frankly the Hague convention regarding child custody, are designed to avoid, which is there’s a proceeding in one state.

It awarded custody to a person. That person decides it’s not going so well, and so they abscond with the child. And a proceeding begins in a way that may or may not be consistent with ... Maryland’s [ ] view of fair notice and jurisdiction.

(Emphasis added). The judge continued to express her concern over the events that had transpired in the case and further related her conversation with the Puerto Rican judge: But short summary is that Ms. Cabrera has taken the parties’ son to Puerto Rico, where he has remained since she took him there. He’s not a loaf of bread. He’s not a sack of potatoes.

He’s a human being. And this was not the way to resolve this issue. This is, she had a protective order, and ⁶⁵ she thought she couldn’t make the protective order be a final order under the circumstances. Then she needed to do something different with a different kind of pleading.

But to ask for the protective order, get it as a temporary, get custody, abscond with the child, go to Puerto Rico, file a case, dismiss the case here, and then say Puerto Rico had jurisdiction because that’s how she made it be, I think is inconsistent with notions of access to justice and fair adjudication. 11 * The other thing is that if it’s really [Ms. Cabreraj’s intention to come back to the United States, the continental United States, Maryland in particular, because she wants to come back here, and that she intends to bring the child, she’s knotted herself in a web that she’s going to have to get out of. And while I don’t think [the Puerto Rico court] was making any specific findings, what he said was if she decides to do that and she wants to take the child with her, I would close the case and rescind our jurisdiction because she’s going back to Maryland. [[Image here]] So I will take under advisement the body attachment because I do need to look at that, although it is at least at present my intention to issue. But more importantly, I think some effort ought to be made to try to see if there’s a way for you to resolve this issue, short of what at least at present looks like is going to happen, which is that there’ll be a body attachment issued eventually that’ll be, that can be executed in Puerto Rico. She’ll be incarcerated.

She’ll be held until she produces the child. This is not a good way to do this. There’s better ways. She has them in her hand, and she can use them.

And while perhaps it will be uncomfortable to have to come back to Maryland to do this, so be it. I mean it may be uncomfortable. But it’s a far better way than what’s happening right now. So the thing is that now I’ve spoken to the [Puerto Rico] judge and at least at the moment he’s unwilling to waive ⁶⁶ Puerto Rican jurisdiction, and I ana unwilling to waive Maryland jurisdiction, I don’t have any question that Maryland is the child’s home state by our law, and that there’s nothing about the situation in Puerto Rico that would, and particularly not anything about the way in which the Puerto Rican order was obtained, that persuades me at this point that we ought to cede our jurisdiction on a forum non[ ]con-venien[s] basis.

So on we go. But I do hope something besides where we stand right now can be obtained. H. The Maryland Final Custody Order and Other Proceedings Two weeks after the pendente lite hearing—the parties having failed to resolve the issues—the court issued a writ of body attachment for Ms. Cabrera on June 15, 2015. In the court’s order accompanying the writ of body attachment, the court found that Ms. Cabrera has “willfully violated the valid orders of this court, by failing to abide by this Court’s orders entered on November 25, 2014 and March 18, 2015.” Ms. Cabrera filed a motion to revise the order and writ of body attachment on June 25, 2015, asserting that the body attachment was not in the best interests of the child.

Ms. Cabrera added that “there is no record of delay or contumacious conduct on the part of [Ms. Cabrera], [that] there was no indication of prejudice to [Mr. Mercado], [and that Ms. Cabrera] was not adequately served with notice of the underlying subpoena[.]” She further maintained that the UCCJEA did not require her to be present in Maryland and that, because the pendente lite hearing did not occur, requiring her to be present on that day would serve only to “harass, annoy and oppress her.” On August 3, 2015, the court entered an order denying Ms. Cabrera’s motion to revise the order of body attachment. On August 19, 2015, Ms. Cabrera filed the first notice of appeal to this Court in these proceedings, appealing the order denying ⁶⁷ the motion to revise the body attachment. 23 On September 14, 2015, the circuit court entered an order denying Ms. Cabrera’s motion to decline jurisdiction and vacate the emergency temporary custody order. Ms. Cabrera appealed this order, filing her second notice of appeal on September 18, 2015. 24 Mr. Mercado then served Ms. Cabrera’s counsel with another subpoena, this one for Ms. Cabrera’s appearance at the September 21, 2015 trial. Ms. Cabrera filed a motion to quash the second subpoena on September 15,2015.

The custody merits hearing was ultimately rescheduled to November 18, 2015. Mr. Mercado appeared and produced five witnesses. Ms. Cabrera was once again represented by counsel, but did not herself appear. After evidence was presented, the court made its requisite findings on the record, all the while acknowledging the one-sided nature of the proceedings.

The court first found that Mr. Mercado was a fit parent for A.M.C. 25 The court next found that the character and reputation in the community of both parents was fine until A.M.C. was bom. The court found that Mr. Mercado’s request for custody was sincere and could not address any agreement between the parties because there has been no agreement and found that it could not address willingness to share custody that day. The court also found that (1) the Mercado family was willing to include Ms. Cabrera in their family life; (2) A.M.C. would be the only child in Mr. Mercado’s home, but did not know about the number of children in Ms. Cabrera’s home; (3) ⁶⁸ A.M.C. was too young to have a custody preference; (4) the parents had problems communicating; (5) there was a large distance between the geographic locations of the parents; (6) Mr. Mercado earned $95,000.00 a year and that Ms. Cabrera was employed; (7) Mr. Mercado could provide a stable and appropriate home for A.M.C.; (8) A.M.C. bonded with his father before their separation “and should have the opportunity to continue to do so”; and (9) A.M.C. was still too young for there to be a disruption of his social and school life. After announcing her findings, the judge gave her ruling: What’s most relevant here is that the child will do best if he has two parents.

I don’t know how to make that happen, because Ms. Cabrera is in Puerto Rico, and has the child there, and has not, as of yet, returned the child here. We are, essentially, at a standoff. This is a horrible game to play with the child’s life, but I don’t really know beyond making an order what I can do. So, I will find under all the circumstances, based on the factors that I have considered, that Mr. Mercado is a fit and proper parent to have sole legal custody of A[M.C.], and primary residential custody of him.

That’s the language that the Maryland courts use. I think it’s also pretty much the language that the Parental Kidnapping Prevention Act, and the Uniform Child Custody Jurisdiction and Enforcement Act use. I recognize that I just made a court order that is directly opposite to what the Puerto Rican order says, but I think in this situation where an order’s been made in a way that flies in the face of jurisdictional determinations in this state that I can do nothing else. On December 11, 2015, the court entered its written order, reflecting that Mr. Mercado’s requests for attorney’s fees and costs would be determined at a later date. 26 On January 8, ⁶⁹ 2016, Ms. Cabrera filed a “Notice of Amended Appeal,” appealing the order of custody.

Ms. Cabrera presents the following questions on appeal: 1. “Did the trial court err in asserting jurisdiction over custody (and entering an order for custody) when the trial court was aware that another court had already commenced a proceeding concerning custody and the other proceeding was neither terminated nor stayed and that Appellant had not been served with process?” 2. “Did the trial court err in entering an order for custody without first attempting to communicate with another court, while aware that the other court had previously asserted jurisdiction over the same child, the same parties and the same subject matter?” 3. “Did the trial court err in declining to treat Maryland as an inconvenient forum without considering the necessary factors?” 4. “Did the trial court err in issuing an order for body attachment, finding that Appellant had willfully violated the Court’s orders without a hearing, show cause order or finding of contempt?” 5. “Did the trial court err in issuing a body attachment, to enforce a subpoena against Appellant, without first determining if sufficient cause existed, and when enforcement would not have benefitted the requesting party nor furthered the interests of justice?” DISCUSSION I. Jurisdiction Over the Custody Proceedings Under the UCCJEA and the Parental Kidnapping Statute As by now apparent, this case has a tangled procedural ⁷⁰ history, with three notices of appeal filed in a six-month span. To untangle this knot, we start by deciding that we have appellate jurisdiction over the questions relating to custody. A party may appeal from an interlocutory order “[depriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order[.]” Maryland Code (1973, 2013 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), § 12-303(3)(x).

Ms. Cabrera filed her third notice of appeal on January 8, 2016, within 30 days of the circuit court’s December 11, 2015 final custody order, which granted sole legal and primary residential custody of A.M.C. to Mr. Mercado, thereby necessarily depriving Ms. Cabrera of custody. Therefore, we have appellate jurisdiction over the questions Ms. Cabrera presents concerning custody, see CJP § 12-303(3)(x), but as explained infra, we do not have appellate jurisdiction over the body attachment issues raised in her first appeal. a. Legal Framework The rules of engagement for this jurisdictional conflict are contained in the Parental Kidnapping Statute and the Maryland UCCJEA. The Parental Kidnapping Statute is a federal statute, which applies in every United States jurisdiction, including Puerto Rico.

Congress enacted the Parental Kidnapping Statute in 1980 to supplement the Uniform Child Custody Jurisdiction Act (“UCCJA”), codified by at least 43 states at that time, in response to the quasi-accepted practice of “child snatching” to obtain a favorable custody determination in another jurisdiction. 28 U.S.C. § 1738A; Jones, supra, at 147 (citations omitted); Goldstein, supra, at 850. Although the UCCJA was “designed to establish a hierarchy of jurisdictional rules for custody cases,” state courts were not required and often declined to extend full faith and credit to existing custody ⁷¹ determinations in other jurisdictions. Id. at 146; see also Goldstein, supra, at 864. The Parental Kidnapping Statute was intended to resolve this growing problem by “requir[ing] states to accord full faith and credit to custody decrees.” Goldstein, supra, at 916.

Yet, interstate conflicts continue because courts interpret the Parental Kidnapping Statute inconsistently. Id. at 938-39; Jones, supra, at 149. The Parental Kidnapping Statute defines a child’s “home state” as follows: the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period 28 U.S.C. § 1738A(b)(4) (emphasis added).

Therefore, under the Parental Kidnapping Statute, the home state of a child not yet six months old is that in which the child has lived since birth with a parent. The statute provides that a custody determination made consistently with its provisions by one state will receive full faith and credit by another state. 28 U.S.C. § 1738A(a). A custody determination is only made consistently with the Parental Kidnapping Statute if the following jurisdictional requirements are satisfied: (c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if— (1) such court has jurisdiction under the law of such State; and (2) one of the following conditions is met: (A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six ⁷² months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State; (B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; (C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse; (D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or (E) the court has continuing jurisdiction pursuant to subsection (d) of this section. 28 U.S.C. § 1738A(c) (emphasis added). As the excerpted text demonstrates, the child’s home state is given jurisdictional preference under the Parental Kidnapping Statute.

In addition, a state that exercises jurisdiction pursuant to the Parental Kidnapping Statute retains jurisdiction so long as certain conditions are met: (d) The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with ⁷³ the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant. 28 U.S.C. § 1738 (d). Thus, once a state has exercised jurisdiction under the Parental Kidnapping Statute, by making a child custody or visitation determination, that state retains jurisdiction as long as it (1) retains jurisdiction under its own state laws and (2) continues to be the residence of either the child or any contestant. The model UCCJEA is the successor to the UCCJA. Friedetzky v. Hsia, 223 Md.App. 723, 734 , 117 A.3d 660 (2015).

In 1997, the National Conference of Commissioners of Uniform State Laws (“NCCUSL”) “promulgated the UCCJEA to revise the UCCJA in order to coincide with federal enactments[, such as the Parental Kidnapping Statute,] and to resolve the consequent thirty years of conflicting case law caused by states’ various enactments of the UCCJA.” Id. (citation omitted). In 2004, Maryland enacted its version of the UCCJEA, codified at FL § 9.5-101 et seq. 27 2004 Md. Laws, ch. 502 (H.B. 400). This Court has recognized that “[t]he UCCJEA, governing custody and visitation, ... w[as] established to provide systematic and harmonized approaches to urgent family issues in a world in which parents and guardians, who choose to live apart, increasingly live in different states and nations.” Friedetzky, 223 Md.App. at 726-27 , 117 A.3d 660 .

The UCCJEA “ ‘provide[s] stronger guidelines for determining which state has jurisdiction, continuing jurisdiction, and modification jurisdiction over a child custody determination[.]’ ” Miller v. Mathias, 428 Md. 419, 452 , 52 A.3d 53 (2012) (quoting In re Kaela ⁷⁴ C., 394 Md. 432, 455, 906 A.2d 915 (2006)). A chief function of the UCCJEA is to “[d]eter abductions of children[.]” UCCJEA, § 101 emt., 9 U.L.A. Part 1A, at 657 (1997). Since its promulgation, the UCCJEA has generally “reduced the instance of jurisdictional conflicts.” Andrea Charlow, There’s No Place Like Home: Temporary Absences in the UCCJEA Home State, 28 J. Am. Acad.

Matrim. L. 25, 28 (2015). Under Maryland's UCCJEA, (h) “Home state” means: (1) 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; and (2) in the case of a child less than 6 months of age, the state in which the child lived from birth with any of the persons mentioned, including any temporary absence. FL § 9.5-101(h) (emphasis added).

Thus, like the Parental Kidnapping Statute, if a child is not yet six months old, a child’s home state under the UCCJEA is the state in which he or she has lived from birth with a parent. Id. Further, the UCCJEA’s bases for jurisdiction are substantially similar to that of the Parental Kidnapping Statute. The UCCJEA confers jurisdictional preference to the child’s home state under FL § 9.5-201(a): (a) Grounds for jurisdiction—Except as otherwise provided in § 9.5-204 [governing temporary emergency jurisdiction] of this subtitle, a court of this State has jurisdiction to make an initial child custody determination 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 a parent continues to live in this State; ⁷⁵ (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; (3) all courts having jurisdiction under item (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under § 9.5-207 or § 9.5-208 of this subtitle; or (4) no court of any other state would have jurisdiction under the criteria specified in item (1), (2), or (3) of this subsection.

(b) Exclusive jurisdictional basis—Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State. (c) Effect of physical presence—Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination. (Emphasis added). Therefore, under the UCCJEA, the child’s home state has jurisdiction unless the home state has declined jurisdiction, and this is the exclusive jurisdictional basis for a court to make a child custody determination.

A court that makes an initial custody determination under FL § 9.5-201 enjoys “exclusive, continuing jurisdiction over the determination[.]” FL § 9.5-202. See also Charlow, supra, 28 J. Am. Acad. Matrim.

L. 25, 28 (2015) (“Once an order has been rendered consistent with the act, the issuing state has continuing, exclusive jurisdiction until all the parties and the child have left the state or the issuing state determines that the ⁷⁶ child and the parties no longer have a significant connection with the state and substantial evidence is no longer available there.” (footnote omitted)). As stated supra, under the Parental Kidnapping Statute, similarly, once a state makes a child custody determination, it retains jurisdiction so long as it retains jurisdiction pursuant to its own state law and remains the residence of the child or one of the contestants. A state should not exercise jurisdiction if, at the time the proceeding commences, another state “having jurisdiction substantially in conformity” with that state’s UCCJEA has already begun proceeding. In Maryland, FL § 9.5-206(a) provides: Except as otherwise provided in § 9.5-204 [governing temporary emergency jurisdiction] of this subtitle, a court of this State may not exercise its jurisdiction under this subtitle if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this title, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this State is a more convenient forum under § 9.5-207 of this subtitle.[ 28 ] The UCCJEA, much like the Parental Kidnapping Statute, provides for temporary emergency jurisdiction when a state is not the home state of the child.

A Maryland court has temporary emergency jurisdiction if the child is physically present in Maryland and he or she has been abandoned or it is necessary in an emergency situation to protect the child because the child is subjected to or being threatened with abuse. FL ⁷⁷ § 9.5-204. Exercise of jurisdiction under FL § 9.5-204, however, is generally temporary and does not constitute the exclusive, continuing jurisdiction of FL §§ 9.5-201 to 202. To summarize, under the UCCJEA, a court has jurisdiction to make an initial child custody determination if (1) it is the home state of the child or was the child’s home state within six months before the commencement of the proceeding and the child is absent from the state, but still has a parent living within the state; (2) there is no home state or the home state has declined to exercise jurisdiction, and the child and a parent have a significant connection to the state and substantial evidence is available in the state; (3) all courts having jurisdiction under the first two bases have declined jurisdiction; or (4) no court would be able to exercise jurisdiction under the first three bases just mentioned.

FL § 9.5-201. Once a state has made an initial custody determination, that state enjoys exclusive,