Drexler v. Bornman

³⁵⁷ KRAUSER, C.J. The Uniform Child Custody Jurisdiction and Enforcement Act (the “Act”), 1 provides that a court of a child’s “home state” has exclusive jurisdiction to “make an initial child custody determination,” with only two exceptions, which we shall later more fully acknowledge and which, in any event, are not relevant to the issue before us. A “home state” for a child six months or older, as we have here, is, according to the Act, “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.” 2 This appeal requires us to decide whether a seven-year-old child’s week-long visit to Maryland, which interrupted his one-year-and-five-month residence in Indiana, was a “temporary absence” from Indiana or was, though brief, a change of residence that, in effect, prevented the aforementioned six consecutive month requirement from being met and thereby denied Indiana “home state” status. In addressing this issue, we must examine, among other things, what role the mother’s short-lived intent to change her residence from Indiana to Maryland should play in making that determination. This issue arose when Sara Drexler and Thomas Drexler, the maternal grandparents of Cameron Wright and residents of Maryland, filed a complaint, in the Circuit Court for Baltimore County, seeking custody of Cameron.

The parents and current custodians of Cameron, Indiana residents Jennifer Bornman and Edward Wright, were named as defendants. At the time the Drexlers filed their custody complaint, Cameron was seven years old and was residing in Indiana. In dismissing the complaint upon the motion of Cameron’s mother, the circuit court ruled that Maryland lacked jurisdiction over the ³⁵⁸ custody dispute, because Indiana was Cameron’s “home state.” This appeal, by the Drexlers, followed. Background Cameron was born in Indiana in July of 2005, to his mother, Jennifer Bornman and his father, Edward Wright.

From his birth and until he was approximately eighteen months old, Cameron lived in Indiana with his parents. Then, in October of 2006, Cameron and his parents moved to Maryland, where they lived with the Drexlers, who are Cameron’s maternal grandmother and maternal step-grandfather. Then, within “a couple” of weeks, Cameron’s father moved back to Indiana while Cameron and his mother remained in Maryland with the Drexlers. About three years and five months after relocating to Maryland, Cameron and his mother, moved back to Indiana in March of 2010.

Less than a month later, however, Cameron’s mother arranged for Cameron to return and stay with the Drexlers while she continued to live in Indiana. But, that arrangement ended when, fourteen-and-a-half months later, Cameron was returned to Indiana to live with his mother. On March 25, 2012, while living in Indiana, Cameron’s mother sent text messages to her sister, who lived with the Drexlers, informing her that she and Cameron were going to move, in the “middle or end” of April, back to Maryland to “stay.” According to Cameron’s mother, she wanted to change her residence because her relationship with her girlfriend had begun to “deteriorate.” Then, on April 30, 2012, Cameron’s mother texted her sister again, telling her that she had just informed her girlfriend and domestic partner that she was “leaving.” A month later, after having spent about a year in Indiana, Cameron and his mother moved back to Maryland, leaving behind some of their belongings in storage. At that time, according to the testimony of Cameron’s mother, she intended to “stay” in Maryland.

But, within a week of arriving in Maryland, Cameron’s mother changed her mind, upon reconciling with her former ³⁵⁹ girlfriend. She decided to return, with Cameron, to Indiana. Upon arriving back in Indiana on June 8th, Cameron first lived with his father and then, in October, moved in with his mother. On November 20, 2012, the Drexlers filed a complaint, in the Baltimore County circuit court, seeking custody of Cameron.

Cameron’s mother responded with a motion to dismiss on the grounds that Maryland did not have jurisdiction because Indiana was Cameron’s “home state,” and, even if Maryland did have jurisdiction, the circuit court should decline to exercise its jurisdiction because Indiana was a more convenient forum. Following a hearing, the circuit court granted the motion of Cameron’s mother and dismissed the case, declaring that Indiana was Cameron’s “home state” and that, therefore, Maryland lacked jurisdiction over the custody dispute. The Drexlers then noted this appeal. Discussion The Drexlers contend that Maryland did not lack jurisdiction because Indiana is not Cameron’s “home state.” Although Cameron and his mother had been living in Indiana for one year and five months before suit was filed, they claim that, because Cameron’s mother brought Cameron to Maryland, in June of 2012, with the intent of living here permanently, Cameron’s one-week stay in Maryland meant that he had not lived in Indiana for six “consecutive” months before their complaint was filed, as required by the Act’s definition of “home state.” As a consequence, Indiana is not Cameron’s “home state,” maintain the Drexlers.

Cameron’s mother counters that her and her son’s week-long stay in Maryland in June of 2012 was, under the Act, a “temporary absence” from Indiana, and, therefore, Cameron lived in Indiana continuously from June 14, 2011, up to the day that the Drexlers filed their complaint for custody one year and five months later, on November 20, 2012. And, because Cameron lived in Indiana “for at least 6 consecutive months, including any temporary absence, immediately before the commencement” of the custody proceeding, his mother claims, ³⁶⁰ Indiana is his “home state” and has exclusive jurisdiction over the custody dispute. The purpose of the predecessor to the Act, the Uniform Child Custody Jurisdiction Act, among other things, was to “[a]void jurisdictional competition and conflict with courts of other states in matters of child custody.” Howard v. Gish, 36 Md.App. 446, 450 , 373 A.2d 1280 (1977) (quoting Md.Code (1957, 1973 Repl. Vol., 1976 Cum.Supp.), Art. 16 § 184).

To achieve that end, the Act 3 now provides that a child’s “home state” has exclusive jurisdiction to “make an initial child custody determination.” FL § 9.5-201; see Toland v. Futagi, 425 Md. 365, 373 , 40 A.3d 1051 (2012) (noting that the Act is consistent with the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, which gives “exclusive jurisdiction to the home state, so as to avoid concurrent jurisdiction with another state”). There are, however, two exceptions to this statutory precept. They are: when the “home state” has declined to exercise its jurisdiction, FL § 9.5-201(a), or when a “child is present in this State” and has been abandoned or is need of protection “because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse,” FL § 9.5-204(a). But what constitutes a child’s “home state”?

For a child less than six months old, it is the state “in which the child lived from birth.” But, for a child more than six months old, such as Cameron was at the time the Drexlers initiated their lawsuit, it is a state in which the child lived for six consecutive months before the commencement of the proceeding. Any “temporary absence” of the latter child, from the state in which he or she has been living, counts as part of that six-month period. Specifically, the Act states: (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 ³⁶¹ 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).

Although Cameron’s mother maintains that, during the six months preceding the commencement of the Drexlers’ custody suit, she and Cameron lived in Indiana, the Drexlers claim that Cameron’s period of residency in Indiana ended, before the prerequisite six months had passed, when Cameron and his mother moved to Maryland from Indiana with the intention of living in Maryland and, thereafter, resided in Maryland for one week before returning to Indiana permanently. Hence, the Drexlers would have us conclude that Cameron and his mother did not live in Indiana for “at least 6 consecutive months, including any temporary absence, immediately before the commencement” of the custody action they filed. Thus, the question before us is whether Cameron’s week-long stay in Maryland was a “temporary absence” from Indiana and thus can be counted as part of the six months for determining Cameron’s “home state” or whether that stay effectively terminated Cameron’s Indiana residence. We begin our resolution of this issue with the acknowledgment that there are no Maryland appellate decisions that address what test or what factors are to be considered in making that determination. 4 The Drexlers urge us to adopt a “totality of the circumstance” test that includes considering that Camer ³⁶² on’s mother intended to stay in Maryland when she returned to Maryland in June of 2012.

While we agree with the Drexlers that a “totality of