Howard v. Gish

Menchine, J., delivered the opinion of the Court. Roger Howard (natural father) and Inez C. Todd (maternal grandmother) appeal to this Court from a decree of the Circuit Court for Washington County, whereby custody of Lori Lynn Howard, age 10 years, was awarded to her stepfather, James L. Gish. The mother of the child had died on May 21, 1976, from injuries sustained when she fell from a horse. The litigation developed under the following circumstances: The body of Marcia Todd Gish had been taken to Darien, Georgia for burial.

James L. Gish and Lori Lynn went to Georgia on Thursday. The funeral was scheduled for Saturday. Between Thursday and Saturday, however, discussions took place among the father, grandmother and stepfather with respect to the future custody of the child. As a result, the stepfather and the child left Georgia without notice on Friday at about 10 p.m., prior to the funeral of the mother.

He explained that he had done so, “Because I had every indication and every belief that they was trying to take Lori from me then, they wasn’t going to let me bring her back home. And, I had discussed it with Lori and she said to leave.” He added that he had left Georgia in such precipitant fashion upon the advice of Georgia counsel. His petition for custody was filed shortly after his return to Maryland. The joint answer of the father and grandmother alleged, inter alia: .. that petitioner has never been able or willing to support himself or anyone else by steady gainful employment, but has, on the contrary, subsisted largely upon the efforts of others.

He is not of proper character to maintain the stability in home ⁴⁴⁸ life that is requisite in the rearing of a young child; he is no relation to said child and has no standing to demand custody of said child.... that they are next and nearest of kin to the minor child, Lori Lynn Howard; that they deeply love said child; that they are jointly and severally physically, financially, and morally capable of rearing and caring for said child; that they jointly and severally desire and are entitled to custody of said child and that the best interests of said child require that custody of said child be awarded to them or to one of them.” The joint brief of the father and maternal grandmother makes the following contentions on appeal: “I. The Circuit Court for Washington County erred by not dismissing the petition for want of jurisdiction over the subject matter of the litigation in that the legal status of Lori Lynn Howard was dependent upon her domicile and under established . . . [law] domicile is Georgia and not Maryland.

II

The Court erred in not adhering to the ‘continuing jurisdictional rule’ under which the court of the state which originally awarded custody retains jurisdiction to redetermine the best interests of the child upon the death of the spouse to whom it had originally awarded custody.

III

The Court erred in awarding custody of the child to appellee because, the evidence did not support a finding of unfitness as to appellants.” I and II We believe that passage in Maryland of the Uniform Child Custody Jurisdiction Act by Chapter 265 of the Laws of Maryland, 1975, and now codified as Article 16, §§ 184-207, inclusive, (1976 Cumulative Supplement) requires us to discuss contentions I and II together. ⁴⁴⁹ The Undisputed Jurisdictional Facts Lori Lynn Howard was born to the marriage of Roger Howard and Marcia Todd Howard (now deceased) on May 30, 1966, in the State of Georgia. Both parents were natives of that State and were married there in 1962. After their marriage the Howards lived within voice range of the maternal grandmother’s home in Darien, Georgia, from the time of their marriage until their separation in June 1970. The maternal grandmother cared for Lori Lynn during the day because both parents were employed during that period of her life.

The Howards were divorced in Georgia on June 5, 1970, with custody of Lori Lynn awarded by the Georgia court to the mother, Marcia Todd Howard. Mother and daughter lived with the maternal grandmother from June 1970 until three months after Marcia’s marriage to James L. Gish on September 15,1972. Shortly thereafter the Gishes and Lori Lynn moved to Woodbridge, Virginia, where they resided until June 1975, when they moved to Hagerstown, Maryland. They moved from Hagerstown into rural Washington County, Maryland, in November 1975'and continued to reside there until the tragic death of the mother.

The stepfather and Lori Lynn remained there as residents after the mother’s death and were in residence there at the time of trial in the lower court. The Law as to Jurisdiction By Chapter 265 of the Laws of Maryland, 1975, now codified as Article 16, §§ 184-207, inclusive, Maryland adopted the Uniform Child Custody Jurisdiction Act (the Act). This case appears to be the first appellate examination of the jurisdictional aspects of the Act. We shall accordingly set forth in full herein the three sections of that Act that relate: (a) to the purposes intended to be served by the legislation (§ 184); (b) to the definitions of words and phrases used in the legislation (§ 185); and (c) to the ⁴⁵⁰ jurisdictional requisites in child custody cases (§ 186).

We believe that those three sections make plain that the State of Maryland has jurisdiction and that the cases indicating Maryland’s adherence to the “continuing jurisdictional rule” are, to the extent of any inconsistency with the statute, no longer controlling authorities. 1 “§ 184. Purpose and construction of subtitle. (а) The general purposes of this subtitle are to: (1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being; (2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child; (3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state; (4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; (5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards; (б) Avoid relitigation of custody decisions of other states in this State insofar as feasible; (7)Facilitate the enforcement of custody decrees of other states; ⁴⁵¹ (8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this State and those of other states concerned with the same child; and (9) Make uniform the law of those states which enact it. (b) This subtitle shall be construed to promote the general purposes stated in this section. “§ 185.

Definitions. In this subtitle the following words have the meanings indicated: (1) ‘Contestant ’ means a person, including a parent, who claims a right to custody or visitation rights with respect to a child. (2) ‘Custody determination ’ means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person. (8) ‘Custody proceeding’ includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.

(4) ‘Decree ’ or ‘custody decree ’ means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree. (5) ‘Home state’ means the state in which the child immediately preceding the time involved lived with his 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. ⁴⁵² (6) ‘Initial decree ’ means the first custody decree concerning a particular child. (7) ‘Modification decree ’ means a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court.

(8) ‘Physical custody ’ means actual possession and control of a child. (9) ‘Person acting as parent ’ means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody. (10) ‘State' means any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia. (1975, ch. 265, § 2.) “§ 186.

When court has jurisdiction. (a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (1) This State (i) is the home state of the child at the time of commencement of the proceedings, 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 his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or (2) It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one 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; or (3) The child is physically present In this State and (i) the child has been abandoned or (ii) it is ⁴⁵³ necessary in an emergency to protect the child because he has been 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 paragraphs (1), (2), or (3), 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) Except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination. (c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.” Briefly stated, the appellants maintain: (1) that the domicile of the