Gestl v. Frederick

ADKINS, Judge. We must decide in this appeal whether the State of Maryland is the proper forum to hear a child custody dispute under the Uniform Child Custody Jurisdiction Act. Donna Gestl, appellant, argues that the Circuit Court for Baltimore City erred in dismissing her child custody dispute against Lisa Frederick, appellee. Appellant raises two issues on appeal, which we have rephrased slightly: I. Whether the trial court erred in declining jurisdiction because Maryland was an inconvenient forum.

II

Whether the trial court erred in dismissing the case rather than staying the proceedings. FACTS 1 AND LEGAL PROCEEDINGS Appellee is the biological mother of a child with many special needs. 2 According to appellee, the child “has been evaluated, as developmentally delayed, speech and learning disabled, Attention Deficient Hyperactivity disorder and autistic like disorder.” While pregnant with the child in November 1992, appellee moved from the state of Tennessee to the State of Maryland. The child was born in Maryland on March 13,1993. At some point, the parties became involved in an intimate relationship and appellee and the child moved into appellant’s home in July 1993. ²²² The parties dispute what occurred during the course of their relationship.

Appellant alleges that while she was not the child’s “biological mother, [she has] been his parent since birth.” She asserts that she was appellee’s “birthing coach” and was present at the child’s birth. She claims she shared parenting responsibilities with appellee and that the two “generally held themselves out to the world as a family unit.” Moreover, she alleges that her family saw the child on a regular basis and treated him as a member of their family. She further asserts that appellee “chose a name for [the child] to call [appellant]: ‘Mim’, a derivative of mom.” Finally, she claims that she assumed primaiy financial responsibility for appellee and the child. Appellee, on the other hand, alleges that appellant’s “role regarding the child was one of recreation and entertainment.” She asserts that the parties never discussed a joint parenting arrangement regarding the child and that appellant never suggested that she would assume financial responsibility for the child.

Additionally, appellee claims that she received governmental assistance to meet the child’s needs and that appellant insisted she obtain employment, which she did in March 1997. Appellee also asserts that appellant has a violent temper and would argue with her in front of the child and that appellant threatened “to take [the child] away from [appellee] by going to court and alleging she was an unfit mother.” Appellee moved out of appellant’s residence in August 1998 and returned to Tennessee. Appellee claims that since moving to Tennessee, she has become employed as a substitute teacher, and “obtained the services of a pediatrician and enrolled the child in a local elementary school which was equipped and staffed to meet [his] special educational needs.” In November 1998, the Tennessee Department of Children’s Services (“Department”) filed an action against appellee in the Juvenile Court for Anderson County, Tennessee (“Juvenile Court”), seeking custody of the child. 3 In addition, appellee ²²³ filed in the Juvenile Court a petition to establish paternity against Spam in May 1999. 4 On December 3,1998, appellant filed a “Complaint for Joint Legal Custody, Pendente Lite and Permanently, and Visitation and Other Relief’ in the circuit court. On March 9,1999, appellee filed a motion to dismiss asserting, inter alia: (1) the court should decline jurisdiction because there was a pending proceeding in Tennessee involving the child and that Maryland was an inconvenient forum; and (2) that appellant lacked standing to pursue the action because appellee “is neither an unfit parent nor do exceptional circumstances exist to overcome the presumption that is it [sic] in the child’s best interest to remain with ... his biological parent.” A hearing on appellee’s motion was held on May 27, 1999.

At the hearing, the court was presented with evidence of the consent judgment appellee entered with the Department and the petition filed in the Juvenile Court by appellee against Spam to establish paternity. After the hearing, the trial judge contacted a judge in the Juvenile Court, who indicated that two files existed regarding the child: the custody case filed by the Department on November 18, 1998, and the paternity action that was filed on May 19,1999. The Tennessee judge indicated that the custody case was closed and the paternity case was pending. Additionally, when asked by the trial judge about what a Tennessee court “might do with a non-blood-related person,” the Tennessee judge indicated that “in her view, in Tennessee a non-blood-related person is never given custody unless ... there could be proof of ‘dependency or neglect.’ ” On June 21, 1999, the trial court issued a written opinion granting appellee’s motion to dismiss.

The court found that Maryland did have jurisdiction pursuánt to Md.Code (1984, ²²⁴ 1999 RepLVol.), § 9-204(a)(l) of the Family Law Article (“FL”). Nevertheless, the court held that Tennessee was the appropriate forum to hear the dispute because Tennessee was the more convenient and appropriate forum. In so doing, the court explained: [T]he great bulk of the contacts, information and expertise concerning the best interest of the child, both presently and in the future, exist in the state of Tennessee. This [c]ourt believes, in accordance with [FL s]ection 9-207(c), that Tennessee has a closer connection with the parties and the child’s family, and that virtually all of the personal and professional evidence concerning the child’s present and future best interest is in Tennessee.

Additional facts will be added as necessary to supplement the following discussion. DISCUSSION Appellant contends that the trial court erred in declining jurisdiction. She argues that “although [s]ection 9-207 permits a court to decline jurisdiction if it finds that it is an inconvenient forum, both Maryland case law and the plain language of the [Uniform Child Custody Jurisdiction Act] prohibit a court from doing so where the proposed alternative forum is only theoretically available and will not actually hear the ease.” She contends that Tennessee is not an available alternative forum because Tennessee only recognizes a third party’s claim to custody in instances of abuse and neglect. According to her, at the very least, the trial court should have stayed the Maryland proceedings under FL section 9-206(c).

I. The Uniform Child Custody Jurisdiction Act All fifty states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction Act (“UCCJA”). Maryland adopted the UCCJA in 1975, and it is codified as the ²²⁵ Maryland Uniform Child Custody Jurisdiction Act (“Act”). See FL § 9-201 et seq. In Olson v. Olson, 64 Md.App. 154 , 494 A.2d 737 (1985), Judge Rosalyn Bell explained that the Act is in response to a ‘growing public concern over the fact that thousands of children are shifted from state to state and from one family to another every year while their parents or other persons battle over their custody in the courts of several states ...

It is well known that those who lose a court battle over custody are often unwilling to accept the judgment of the court. They will remove the child in an unguarded moment or fail to return him after a visit and will seek their luck in the court of a distant state where they hope to find—and often do find—a more sympathetic ear for their plea for custody. The party deprived of the child may then resort to similar tactics to recover the child and this ‘game’ may continue for years, with the child thrown back and forth from state to state, never coming to rest in one single home and in one community.’ Id. at 160 , 494 A2d 737 (quoting UCCJA, 9 U.L.A Commissioners’ Prefatory Note at 111-12 (1968)). The UCCJA controls which state has subject-matter jurisdiction over child custody cases.

See Harris v. Simmons, 110 Md.App. 95, 102 , 676 A.2d 944 , cert. denied, 343 Md. 680 , 684 A.2d 454 (1996). The General Assembly has recognized that the purposes of the Act include avoiding jurisdictional competition and conflict with courts of other states in matters of child custody, promoting 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,” assuring that litigation concerning the custody of a child takes place ordinarily in the state with which the child and the child’s family have the closest connection and where significant evidence concerning the child is available, and discouraging continuing controversies over child custody. FL § 9-202; see also Tenn.Code Ann. § 36-6-202. ²²⁶ FL section 9-204 sets forth the grounds when Maryland courts may exercise jurisdiction. It provides, in pertinent part: (a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification decree if: (1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of the child’s removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this State[.] FL § 9-204.

Tennessee has similar jurisdictional requirements. See TenmCode Ann. § 36-6-216. Home state is defined as: the state in which the child, immediately preceding the time involved, lived with the child’s parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.

FL § &—201(f). Generally, a “home state” should be the jurisdiction to hear and decide custody disputes. See Olson, 64 Md.App. at 162 , 494 A.2d 737 . “If, however, ‘there is no home state or the child and his family have equal or stronger ties with another state, a court in that state has jurisdiction.’ ” Id. at 162-63 , 494 A.2d 737 (quoting 9 U.LA,. Commissioners’ Note § 3 at 123).

We agree with the trial court that Maryland was the home state of the child and that Maryland has jurisdiction. The undisputed evidence indicates that the child lived in Maryland since his birth and that appellee removed him from Maryland in August 1998. Appellant’s petition was filed on December 3,1998. The child had been absent from Maryland for less than six months at the time the petition was filed. ²²⁷ Therefore, Maryland courts do have jurisdiction under the Act as the child’s home state.

Nevertheless, “[o]ur inquiry does not end here ... because we must further determine whether Maryland is precluded from exercising jurisdiction” under FL sections 9-206 or 9-207. Id. at 163, 494 A.2d 737 . A. FL section 9-206 FL section 9-206(a) provides: When other state more appropriate.—... a court of this State shall not exercise its jurisdiction under this subtitle if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subtitle, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons. FL § 9-206(a).

A court in this State is required to “examine the question of the pendency of proceedings elsewhere in Maryland or in other jurisdictions and should do so of its own motion even if the issue is not raised by the parties themselves.” Paltrow v. Paltrow, 37 Md.App. 191, 197 , 376 A.2d 1134 (1977), aff'd, 283 Md. 291 , 388 A.2d 547 (1978); see FL § 9-206(b). If a proceeding is pending in another jurisdiction, a Maryland court usually must decline to exercise its jurisdiction. See Malik v. Malik, 99 Md.App. 521, 526 , 638 A.2d 1184 (1994). “ ‘Pending’ means that a case has been filed and is not concluded.” John F. Fader II & Richard P. Gilbert, Maryland Family Law, § 9-4(c) at 416 (2d ed.1995). Pursuant to FL section 9-206(b), the trial judge examined the information provided by the parties and contacted a judge in Tennessee to inquire about the pendency of any proceedings.

In doing so, the trial judge discovered that the Department’s custody case against appellee was filed on November 18, 1998. Based on this finding the court held it ²²⁸ “should decline jurisdiction based on there being a prior, then open case in the state of Tennessee.” The trial court, however, failed to take into account that the Tennessee custody case had been closed by the time of the hearing on appellee’s motion. Because the Tennessee custody action was closed, there was no custody dispute “pending” in another jurisdiction. 5 B. FL section 9-207 The trial court ultimately based its decision that Tennessee was the more appropriate forum to hear this custody dispute because “the great bulk of contacts, information and expertise concerning the best interest of this child both presently and in the future, exist in the state of Tennessee.” Appellant contends that the trial court erred because, as a third party, she does not have standing to seek custody in Tennessee. She argues that, at the very least, the trial court should have stayed the Maryland proceedings instead of dismissing the case outright.

FL section 9-207(a) provides: Action if this State is inconvenient forum.—A court which has jurisdiction under this subtitle to make an initial decree or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum. Factors a trial court should consider in determining whether it is an inconvenient forum include: ²²⁹ (1) if another state is or recently was the child’s home state; (2) if another state has a closer connection with the child and the child’s family or with the child and 1 or more of the contestants; (3) if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state; (4) if the parties have agreed on another forum that is no less appropriate; and (5) if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in [FL section 9-202]. FL § 9-207(c). Additionally, if a trial court finds that it is an inconvenient forum, “it may stay the proceedings on condition that a custody proceeding be promptly commenced in another named state or on any other conditions which may be just and proper____” FL § 9-207(e).

We will not disturb a trial court’s decision whether or not to exercise jurisdiction unless the trial court abuses its discretion. See Harris v. Melnick, 314 Md. 539, 557 , 552 A.2d 38 (1989) (affirming the circuit court’s decision to exercise jurisdiction even though Colorado was child’s home state when the father continued to reside in Maryland, original custody decree was entered in Maryland, and there was no indication that Colorado would exercise its jurisdiction). This Court has addressed the application of FL section 9-207 in a number of cases. In Cronin v. Camilleri, 101 Md.App. 699 , 648 A.2d 694 (1994), the wife moved with her children to Hawaii after her daughter complained of sexual abuse by her father, the wife’s husband.

In a Hawaii court, she filed an “Ex Parte Petition for a Temporary Restraining Order for Protection and Statement” against the husband. Id. at 701 , 648 A.2d 694 . The husband thereafter filed a complaint for a limited divorce and custody in a Maryland circuit court. The circuit court declined to exercise jurisdiction on the grounds that the Hawaii proceeding was the initial proceeding ²³⁰ under FL section 9-206 and that Maryland was an inconvenient forum under FL section 9-207.

In affirming the trial court’s decision that Maryland was an inconvenient forum, we held: The record fully supports each of the following findings of fact announced by [the trial court]: (1) the children had a substantial number of relatives in—and a closer connection to—Hawaii, (2) the initial custody proceeding was filed in Hawaii, (3) [the wife] had the ability to earn a living in Hawaii, but not in Maryland, and (4) significant evidence concerning the child’s care, protection, training, and personal relationships is readily available in b.oth states. Id. at 708 , 648 A.2d 694 . We reached a similar result in Solomon v. Solomon, 118 Md.App. 96 , 701 A.2d 1199 (1997). The parties in Solomon resided in Maryland during their marriage and their child was bom in Maryland.

The family moved to New York so that the husband could “complete a one-year fellowship at a hospital in Manhattan” and then moved to Switzerland. Id. at 100 , 701 A.2d 1199 . While living in Switzerland, the mother and child returned to New York and the mother filed an action for divorce that was dismissed for lack of jurisdiction. The husband subsequently filed an action for divorce in the Maryland circuit court, which was granted.

By agreement, the mother, who continued to reside in New York, maintained physical custody, while the father, who had returned to Maryland, was granted visitation. After the divorce, the parties appeared in a Maryland circuit court on a number of occasions and eventually the father filed a request to modify visitation. The wife responded by filing an action in a New York court to modify the divorce judgment and to dismiss the circuit court action filed by the father, claiming that the Maryland court “was an inconvenient forum to make custody and visitation determinations and that ... New York is a more appropriate forum.” Id. at 102 , 701 A.2d 1199 .

The New York court stayed its proceedings pending the result of the wife’s motion in Maryland. ²³¹ We held that the trial court did not abuse its discretion in ruling that, although Maryland had jurisdiction, 6 Maryland was an inconvenient forum because the most convenient forum is New York____ [The child’s] home state is New York and ... New York has a closer connection with [the child] than Maryland---- [T]here is substantial evidence concerning [the child’s] ‘present or future care, protection, training, and personal relationships’ in New York____ [The child’s] rabbi, guidance counselor, doctors, teachers, dentist, and maternal relatives are located in New York. The court observed that [the child] interacts with classmates and Mends, attends camp, and sees his maternal grandmother three to four times a week. Id. at 108 , 701 A.2d 1199 .

Based on the factors outlined in the above cited cases and considering the facts developed in this case, we find that the trial court was not clearly erroneous in its determination that Tennessee was the more convenient forum. Appellee currently resides with the child in Tennessee. She has found gainful employment in Tennessee. Moreover, the trial court correctly noted “it appears that the professionals who are now involved in his present care ... are physically present in the state of Tennessee, including his present doctor, teachers and pediatrician.” Finally, the natural father resides in Tennessee.

C. Lack of an available alternative forum Appellant claims that even if Tennessee is the more appropriate forum, the Mai court erred in dismissing the instant ²³² case because Tennessee is not available to her as an alternative forum because in a contest between a parent and non-parent, a parent cannot be deprived of custody absent a finding of substantial harm to the child. See Bond v. McKenzie, 896 S.W.2d 546, 548 (Tenn.1995). The Court of Appeals has recognized that a Maryland court should not dismiss an action under the doctrine of forum non conveniens when an alternative forum is not available. In Johnson v. G.D. Searle Co., 314 Md. 521 , 552 A.2d 29 (1989), plaintiffs, who were residents of Illinois, instituted a products liability action against a corporation whose “principal office is in Skokie, Illinois ... [and] maintain[ed] no office in Maryland.” Id. at 524 , 552 A.2d 29 .

The trial court dismissed the action because Illinois was the more convenient forum. Although the Court of Appeals held that the trial court did not abuse its discretion in concluding that Illinois was the more convenient forum, it found that the trial court erred in dismissing the action because “limitations have probably ran against the [plaintiffs’] claims under Illinois law____” Id. at 529 , 552 A.2d 29 . Quoting from the Restatement (Second) of Conflicts of Laws (1971), the Court explained that a case should not be dismissed “unless a suitable alternative forum is available to the plaintiff---- [T]he suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states.” Id. at 530 , 552 A.2d 29 (quoting Restatement, § 84, cmt. c). Maryland courts have not addressed the interplay between FL section 9-207 and the requirement that an alternative forum exist.

In support of her position, appellant has cited cases in which other states under the UCCJA have exercised jurisdiction based on the lack of an available alternate forum. In Priscilla S. v. Albert B., 102 Misc.2d 650 , 424 N.Y.S.2d 613 (1980), a child’s second cousin filed an action in a New York court, seeking custody from the child’s adoptive father. The child’s home state was Vermont, but at the time, the child resided with the cousin in New York. The adoptive father subsequently sought and obtained an order from a Vermont court granting him custody.

In addressing a claim that New ²³³ York was an inconvenient forum, the New York judge contacted the Vermont court, which “indicate[d] that this petitioner, as the child’s second cousin, ha[d] no standing to petition any of the Vermont Courts for her custody.” Id. at 619. “The only procedure which appeared] to be available [in Vermont was] a proceeding in the District Court based upon the abuse, neglect or delinquency of the child.” Id. Conversely, the cousin would have standing to pursue the claim under New York law. Based on this finding, the court held that an available alternative forum did not exist and refused to dismiss the case based on Vermont being a more convenient, forum. In so doing, the court reasoned that it “will not exercise its discretion to defer to the jurisdiction of the Vermont Court on the basis of forum non conveniens, as the proposed procedure does not assure ‘that jurisdiction will be exercised by the most appropriate court and that a forum will be available to the parties.’ ” Id.

(quoting New York Domestic Relations Law 75-H(4)). Relying on Priscilla S., the Court of Appeals of New Mexico held that the trial court did not err in retaining jurisdiction in a custody dispute between a biological mother and a former domestic partner. See Barnae v. Barnae, 123 N.M. 583 , 943 P.2d 1036, 1041 (Ct.App.) cert. denied, 123 N.M. 446 , 942 P.2d 189 (1997). In Bamae, a biological mother, her two children, and her former domestic partner resided together in California for a number of years.

After the relationship with the partner ended, the biological mother moved with the children to New Mexico. The partner then filed an action in New Mexico seeking custody. In response, the biological mother returned to California and initiated a proceeding “seeking a determination of parental relationship and child custody there.” Id. at 1038. At the time, California did not grant standing to domestic partners who are not biological parents to claim parental rights, see id. at 1038-39 (citing Nancy S. v. Michele G., 228 Cal.App.3d 831 , 279 Cal.Rptr. 212 , 215 n. 2 (1991) and Curiale v. Reagan, 222 Cal.App.3d 1597 , 272 Cal.

Rptr. 520, 522 (1990)), while New Mexico “has held that a ²³⁴ person in a situation similar to [the partner] made a colorable claim of standing to assert a legal right to some type of continuing relationship with the child.” Id. at 1039 (citing A. C. v. C.B., 113 N.M. 581 , 829 P.2d 660, 665 (Ct.App.), cert. denied, 113 N.M. 449 , 827 P.2d 837 (1992) (holding that non-biological parent who had formally resided with biological mother and child who alleged co-parenting agreement and agreement settling claims of timesharing and custody made prima facie case for relief)). The court held that the trial court did not err in finding that there was no available alternative forum other than New Mexico. The court reasoned that the fact that California courts at the very least do not grant standing to persons in [the partner’s] position means that the California courts are closed to her____ Here again, but for the fact that [the partner’s] lack of standing to assert any parental rights in California foreclosed the possibility of another proceeding, the factors usually considered [in addressing whether a forum is the most convenient] favor California. However, the lack of standing in California deprives the parties of an adequate alternative forum in which to resolve the custody dispute.

Id. at 1041. We agree with appellant that circumstances arise when this State must exercise jurisdiction because another state does not offer an available alternative forum. The question is