Harris v. Simmons

SALMON, Judge. The parties to this appeal are battling for custody of Brittany K., the 6-year-old daughter of appellant Jennifer Harris (nee Simmons). The principal issue presented is whether ⁹⁹ South Carolina had subject-matter jurisdiction to make a permanent custody determination. Brittany was born on April 4, 1990.

Her natural father, Robert K., died in August 1992. Until appellant was admitted to the psychiatric ward of Fairfax General Hospital in February 1993, she and Brittany lived in various homes in Maryland. Craig and Ann Simmons (“the Simmonses”), Brittany’s maternal grandfather and his wife, took in Brittany when Mrs. Harris was admitted to the hospital. After her release, appellant and the Simmonses entered into a voluntary “Care, Custody and Support Agreement” on May 2, 1993, which sought to “ensure stability for Brittany until she reaches school age or until such time as Jennifer Simmons is able to provide a stable and secure living arrangement for both herself and Brittany,” by allowing Brittany to continue living with the Simmonses.

Brittany lived with the Simmonses until August 27, 1993, when appellant changed her mind and insisted that her daughter again reside with her. For the next seven months, Brittany lived with her mother and step-father, Louis Edward Harris, Jr. 1 Mr. Simmons, with appellant’s consent, picked up Brittany on April 8, 1994 for a pre-arranged period of visitation. The Simmonses planned to have Brittany visit them in their new home in Horry County, South Carolina. The three-week visit was scheduled to allow appellant time to recover from the birth of her second child.

Mr. Simmons’s daughter, Mary (appellant’s sister), discovered bruises and welts on Brittany’s buttocks and legs shortly after the visitation period began. Upon arrival in South Carolina, the Simmonses had Brittany’s injuries examined by a physician, who reported possible child abuse to the South Carolina Department of Social Services. South Carolina notified the Prince George’s County Department of Social Services (PGDSS) that it was investigating the possible abuse of Brittany. PGDSS made an independent finding of child abuse on May 9,1994. ¹⁰⁰ Brittany told appellees and her treating physicians that her stepfather beat her with a belt, causing the bruising.

Mr. Harris was contacted, and he admitted that he had hit Brittany with his belt once on each of two different occasions, both on April 5, 1994. Appellant and her husband maintained, however, that the bruising was not the result of Mr. Harris’s use of the belt but was instead the result of Brittany falling off playground equipment on April 4,1994. Proceedings in South Carolina The litigation leading to this appeal began on April 19, 1994 when appellees filed for custody of Brittany in the Circuit Court for Horry County, South Carolina. That same day, the court issued an ex parte emergency order granting temporary physical custody of Brittany to the Simmonses, stating, “Without determining whether this Court has on-going jurisdiction in this matter, the facts found above [that Brittany has been physically abused] gives this Court emergency jurisdiction to enter necessary and appropriate orders.” Appellant filed a motion to dismiss “Due to Forum Being Inconvenient.” The South Carolina court issued an order on June 27, 1994, awarding temporary custody of Brittany to appellees pending trial.

The court referred to Maryland as Brittany’s “former home state” and cited, as bases for exercising jurisdiction, the emergency and “significant connections” test of the South Carolina Uniform Child Custody Jurisdiction Act (“UCCJA”). The order was captioned “Final as to Jurisdiction.” A permanent custody hearing was held on January 26, March 7, and March 9 of 1995. The South Carolina court granted permanent custody to the Simmonses on April 7, 1995, stating, “The prior, unappealed final order as to jurisdiction is binding upon this Court, and is the law of this case.” Proceedings in Maryland On May 9, 1994, twenty days after the Simmonses instituted suit in South Carolina, appellant filed a complaint in the Circuit Court for Prince George’s County, Maryland, seeking ¹⁰¹ custody of Brittany under Maryland’s UCCJA, alleging that Maryland was Brittany’s “home state.” 2 The circuit court (Ahalt, J., presiding), after a hearing on July 7, 1994 on the issue of Maryland’s jurisdiction over Brittany’s custody, found that Maryland was Brittany’s home state and that South Carolina had not “exercised jurisdiction substantially in conformity” with the UCCJA. The Simmons-es filed alternative motions to dismiss the complaint pending in Prince George’s County, or to stay the proceedings, on July 12, 1994.

The Simmonses argued that Maryland should not exercise jurisdiction because they had already obtained a custody decree in South Carolina. Appellant responded by arguing that South Carolina should have declined to exercise jurisdiction once an action was commenced in Maryland, the more appropriate jurisdiction. Judge Ahalt presided over a review hearing on the issue of temporary custody and visitation on July 29, 1994. He once again found that Maryland was Brittany’s home state.

He further found that South Carolina had no basis to exercise continuing jurisdiction. That same day, Master Julia B. Weatherly of the circuit court presided over a pendente lite hearing on the custody issue. She recommended that custody be awarded to the Simmonses. She also recommended that Mrs. Harris be granted telephone access to and visitation with Brittany, provided that Mr. Harris was not present and had no contact with Brittany. ¹⁰² The Simmonses filed a “Motion for Finding of Inconvenient Forum” on March 6, 1995.

They asked the Maryland court to decline to exercise jurisdiction over the custody matter. Appellant again argued that South Carolina should have exercised its jurisdiction only until an action was filed in Maryland. 3 The circuit court (Smith, J., presiding) heard argument on the motion to dismiss 4 on May 25, 1995 and granted the motion on June 23, 1995. This timely appeal followed, which presents the following question: Did the South Carolina court properly exercise jurisdiction under the UCCJA to award permanent custody? We answer in the negative, thereby reversing the grant of appellees’ motion to dismiss, and remand for further proceedings.

Until those proceedings have concluded, South Carolina’s grant of temporary custody to appellees shall remain in effect. DISCUSSION I. The UCCJA is codified in Maryland Code (1984, 1991 RepLVol.), §§ 9-201 to -224 of the Family Law Article (“FL”). It controls which state has subject-matter jurisdiction over child custody cases. See In re Marriage of Ben-Yehoshua, 91 Cal.App.3d 259 , 154 Cal.Rptr. 80, 83 (1979); Renno v. Evans, 580 So.2d 945, 948 (La.Ct.App.1991); Family Law & Practice § 32.03[4] (Arnold H. Rutkin, general ed. 1990).

The UCCJA was proposed in 1968 in response to problems of interstate enforcement of custody decrees. By September 1984, all fifty states had adopted it. Family Law, supra, §32.03[4][a], at 32-43. ¹⁰³ The general purposes of the UCCJA are to avoid jurisdictional conflict with courts of other states; to assure that litigation takes place in the state with which the child and the child’s family have the closest connection and where significant evidence concerning the child’s care, protection, and personal relationships is most readily available, and that courts decline to exercise jurisdiction when the child and the child’s family have a closer connection with another state; and to avoid relitigation of custody decisions of other states “insofar as feasible.” FL § 9-202(a); see also S.C.Code Ann. § 20-7-784 (Law.Co-op.1985) (“S.C.Code”). A court issuing a custody decree retains jurisdiction for future modifications so long as the parties have requisite ties to that state.

FL § 9-214; see also S.C.Code § 20-7-810. The UCCJA bases jurisdiction on four grounds, only the first three of which are relevant to this case. (a) Grounds for jurisdiction.—A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination ... 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 proceedings 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; (2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and the child’s parents, or the child and at least 1 contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; (8) the child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child has been ¹⁰⁴ subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or (4)(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with items (1), (2), or (3) of this subsection or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child, that this court assume jurisdiction. (b) Effect of physical presence.—Except under subsection (a)(3) and (4) of this section, physical presence in this State of the child, or of the child and 1 of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.

FL § 9-204. See also S.C.Code § 20-7-788. Neither party disputes that South Carolina had emergency jurisdiction based on the bruising evident on Brittany’s body. What is hotly disputed is whether the South Carolina circuit court had jurisdiction to issue a decree granting permanent custody.

A. FL § 9-204(a)(3) and S.C.Code § 20-7-788(a)(3) Subsection (a)(3) of FL § 9-204 and S.C.Code § 20-7-788 are identical. Both allow a court to decide custody matters if the child is physically present in the state and it is necessary in an emergency to protect the child because he or she has been subjected to abuse. In Malik v. Malik, 99 Md.App. 521 , 638 A.2d 1184 (1994), we held that emergency jurisdiction based on FL § 9-204(a)(3) is temporary, and only preserves “ ‘the status quo for such limited time as is required to permit the petitioner to apply for a change of permanent custody to the state which has jurisdiction over such petition under the U.C.C.J.A.’ ” Id. at 527, 638 A.2d 1184 (quoting Nussbaumer v. Nussbaumer, 442 So.2d 1094, 1097 (Fla.Dist. Ct.App.1983)).

Neither FL § 9-204(a)(3) nor S.C.Code § 20-7-788(a)(3) gives a court authority to make a decision as to ¹⁰⁵ permanent custody. This result is in accord with the decisions in other states. 5 The order granting temporary custody of Brittany to appellees pending trial, therefore, was appropriate. We must now determine whether South Carolina had an independent basis of authority that would allow it to continue exercising jurisdiction on a non-emergency basis and to issue a permanent custody order. B. FL § 9-204(a)(2) and S.C.Code § 20-7-788(a)(2) Subsection (a)(2) of FL § 9-204 and S.C.Code § 20-7-788 use identical language.

If it is in the child’s best interest, ¹⁰⁶ both statutes allow a court to decide a child custody matter if the child and at least one contestant have a “significant connection” with the state and there is available in the state “substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” South Carolina’s final order as to jurisdiction was. based on the fact that it first had gained emergency jurisdiction and also on the “significant connections” test set forth in S.C.Code § 20-7-788(a)(2). 6 We stated in Malik that jurisdiction based on the significant connections test of FL § 9-204(a)(2) should “ ‘limit jurisdiction, not proliferate it.’ ” Id. at 528, 638 A.2d 1184 (quoting Olson v. Olson, 64 Md.App. 154, 165 , 494 A.2d 737 (1985)); see also Unif.Child Custody JurisAct § 3 cmt., 9 U.L.A. 145 (1988). 7 The UCCJA must be read in conjunction with the ¹⁰⁷ federal Parental Kidnapping Prevention Act (“PKPA”). 8 This ¹⁰⁸ Court has held that when a child has a home state, the PKPA “forbids the use of significant connections as the basis for jurisdiction in child custody litigation.” Malik, supra, 99 Md.App. at 528 , 638 A.2d 1184 . 9 At the times the South Carolina and the Maryland actions were filed, Maryland was Brittany’s “home state” within the meaning of the PKPA and UCCJA. Until April 8, 1994, Brittany had resided in Maryland for her entire life. Furthermore, the home state rule is extended for an additional six-month period after the child leaves. FL § 9-204(a)(l)(ii). “The provision makes clear that the [parent in the home state], if he acts promptly, may start proceedings in ¹⁰⁹ his own state if he desires, without the necessity of attempting to base jurisdiction on” significant connections.

Unif.Child Custody JurisAct § 3 cmt., 9 U.L.A at 144. The South Carolina court was incorrect, therefore, in stating in its June 27, 1994 order that Maryland was Brittany’s “former” home state. At the time the custody action was filed in South Carolina, Brittany had been out of Maryland for approximately ten days. Because Maryland was still Brittany’s home state, the South Carolina court could not base its exercise of jurisdiction upon significant connections.

Malik, supra, 99 Md.App. at 528 , 638 A.2d 1184 . The South Carolina court’s reliance on S.C.Code § 20-7-788(a)(2) was therefore misplaced. C. Full faith and credit The UCCJA and the PKPA compel a state to give full faith and credit to a valid custody decree entered by a sister state. See 28 U.S.C. § 1738A(a); FL § 9-213; 10 S.C.Code § 20-7-808.

The comment to the uniform version of the UCCJA states that recognition and enforcement of a custody decree is mandatory “if the state in which the prior decree was rendered 1) has adopted this Act, 2) has statutory jurisdictional requirements substantially like this Act, or 3) would have had jurisdiction under the facts of the case if this Act had been the law in the state.” Unif.Child Custody JurisAct § 13 cmt., 9 U.L.A. at 276. Courts, while parroting this language, see, e.g., Thompson v. Hair, 146 Mich.App. 561 , 381 N.W.2d 765, 767 (1986), have looked at the basis under which the other state exercised jurisdiction in order to deter ¹¹⁰ mine whether the sister state court was actually exercising jurisdiction “substantially in accordance” with the UCCJA. 11 We hold that, because the South Carolina circuit court could only exercise emergency jurisdiction temporarily and, because Maryland was Brittany’s home state, the South Carolina court did not have jurisdiction to issue a permanent custody decree. The PKPA, like the UCCJA, does not require Maryland to give full faith and credit to the South Carolina decree because that state did not exercise jurisdiction consistently with the provisions of the federal statute. See 28 U.S.C. § 1738A(c)(l) (1988) (full faith and credit must be given only to a decree issued by a court that “has jurisdiction under the law of such State”).

To summarize, the South Carolina order granting temporary custody to the Simmonses, based on that state’s emergency jurisdiction, will be enforced by the Circuit Court for Prince George’s County, until that court has made a permanent custody determination based on Maryland’s authority to exercise jurisdiction as Brittany’s home state. ¹¹¹ II. Appellees argue that the UCCJA’s “first-in-time” rule applies in this situation because, when the custody action was filed in Maryland, there was already a proceeding pending in another state. See Unif.Child Custody JurisAct § 6 cmt., 9 U.L.A. at 220 (“When the courts of more than one state have jurisdiction ..., priority in time determines which court will proceed with the action____”); Russell M. Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn.L.Rev. 711, 772 (1982). The court in which the proceeding is pending, however, must still exercise “jurisdiction substantially in conformity with” the UCCJA.

FL § 9-206(a); 12 see also Coombs, supra, at 725 (“By properly entertaining a proceeding and failing to stay it, the court of the other state limits the freedom of the court of the forum state to prefer itself as the appropriate arena.” (Emphasis added)). South Carolina, however, did not exercise jurisdiction in conformity with the UCCJA. Appellees also argue that the trial judge had the discretion to dismiss the action in Maryland under the “inconvenient forum” section of the Maryland UCCJA. A court 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.” FL § 9-207(a).

See also S.C.Code § 20-7-796. In this case, however, the Maryland trial judge specifically found ¹¹² that Maryland was not an inconvenient forum. 13 Because of this finding, FL § 9-207(a) could not be used