Malik v. Malik

MURPHY, Judge. The parties to this appeal are battling for custody of their daughter (the child), who was born in Karachi, Pakistan on ⁵²⁴ September 11, 1983. Appellant, the child’s father, is a citizen of Pakistan. Appellee, the child’s mother, also a citizen of Pakistan, has obtained a student visa that permits her to remain in this country on a temporary basis.

The parties were married on June 20, 1982 and lived together until September of 1990, at which time the child was attending St. Joseph’s Convent School in Karachi. On September 15, 1990, appellee left the marital home and moved in with her parents. She took the child with her. Appellant sued for custody.

When appellee learned of appellant’s lawsuit, she fled the country, taking the child with her. Soon thereafter, appellee moved into the home of a man with whom she has continued to live and by whom she conceived a son who was born in 1991. Appellee was represented by counsel in the Pakistani custody proceeding. She refused, however, to appear in person.

She also refused to obey the judge’s order that the child be produced. It appears that the judge did consider a written statement submitted by appellee, but awarded custody to appellant. Having obtained legal custody of his daughter, appellant set out to find her. Appellee hid the child from appellant for over two years.

In 1992, appellant’s private detectives were finally able to locate the child and appellee in Baltimore County. Once she realized that she had been discovered and that appellant was about to seek enforcement of the order granting him custody of his daughter, appellee filed a complaint in the Circuit Court for Baltimore County, requesting custody of the child and a restraining order against appellant. At the conclusion of an emergency hearing, the trial judge decided that the Circuit Court for Baltimore County had jurisdiction to determine custody, that the Pakistani custody order was not entitled to comity, that temporary custody should be granted to appellee, and that appellant should be enjoined from going within three hundred feet of the child, appellee, or their residence. Appellant asks us to reverse, and to require that comity be granted to the Pakistani custody order.

He presents but one question for our review: ⁵²⁵ Did the chancellor err in exercising jurisdiction when custody proceedings were pending in a foreign country? We are persuaded that the Circuit Court for Baltimore County does have home state jurisdiction over this dispute. On this record, however, we cannot affirm the circuit court’s refusal to grant comity to the Pakistani custody order. We remand for further proceedings.

The circuit court may make whatever pendente lite modification(s) to the present order that are appropriate, consistent with this opinion, and in the best interest of the child. Until the further proceedings have concluded, however, the present order shall remain in effect. I The Uniform Child Custody Jurisdiction Act (U.C.C.J.A.) is codified in Md.Code (1974, 1991 Repl.Vol.), § 9-201 et seq. of the Family Law Article (hereinafter referred to as “FL”). In Etter v. Etter, 43 Md.App. 395, 398 , 405 A.2d 760 (1979), this court recognized: “A court is allowed to decline jurisdiction of a child custody proceeding to deter abduction of children for the purpose of obtaining a custody award.” The parties to this case were married in Pakistan.

They are both citizens of that country. The minor child was born and raised there until she was wrongfully removed. When appellant originally filed for custody, Pakistan was the only home the child had ever known. Under these circumstances, the assumption of jurisdiction by a Maryland Court would appear to offend the controlling principles behind the U.C.C.J.A. Absent the most extraordinary circumstances, a party should not be permitted to obtain relief from a Maryland court by acting with unclean hands in violation of another court’s order.

Whether those extraordinary circumstances exist must be determined in accordance with Part III of this opinion. There are four bases for jurisdiction under the U.C.C.J.A.: (1) home state, (2) significant connections, (3) abandoned ⁵²⁶ children or emergency situation and (4) other state jurisdiction. FL § 9-204. FL § 9-213 provides: The Courts of this state shall recognize and enforce an initial decree or modification decree of a court of another state that had assumed jurisdiction under statutory provisions substantially in accordance with this subtitle, or that was made under factual circumstances meeting the jurisdictional standards of this subtitle, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this subtitle.

(Emphasis added). The U.C.C.J.A. has been adopted with minor variations in all fifty states and the District of Columbia. One of the act’s main objectives is “to avoid jurisdictional conflict ... in matters of child custody.” FL § 9-202(a)(l). In recognition of the fact that our courts will be forced to resolve custody disputes that have arisen in foreign countries, FL § 9-203 provides: The general policies of this subtitle extend to the international area.

The provisions of this subtitle relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees of legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons. When presented with a jurisdictional conflict in a child custody case, the.court must proceed as follows: FIRST, it must ascertain whether it has jurisdiction. SECOND, it must determine whether there is a custody proceeding pending or a decree in another state which presently has jurisdiction. If so, the court must usually decline its jurisdiction.

Etter, supra, 43 Md.App. at 398 , 405 A.2d 760 (emphasis added). ⁵²⁷ Emergency Jurisdiction When a ... court is presented with substantial evidence of imminent physical or emotional danger to the child upon the child’s return to the custodial parent, it is ... empowered to issue a temporary protective order which will preserve 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 a petition under the U.C.C.J.A. Nussbaumer v. Nussbaumer, 442 So.2d 1094, 1097 (Fla.App. 5 Dist.1983) (emphasis added). The Circuit Court for Baltimore County had emergency jurisdiction to consider appellee’s complaint. The trial judge’s ruling, however, cannot be affirmed on the basis of emergency jurisdiction. A court has emergency jurisdiction under the U.C.C.J.A. when 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 subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.

FL § 9-204(a)(3). Appellee’s Petition for Emergency Temporary Custody and Ex Parte Restraining Order Pending Hearing alleged “that the Respondent was constantly physically abusive to the minor child of the parties in order to coerce her to follow his commands.” In light of those allegations, the circuit court had jurisdiction to hear the motion. “A trial court has jurisdiction to determine the question of its own jurisdiction.” Highfield Water Co. v. Washington County Sanitary Dist., 295 Md. 410, 415-416 , 456 A.2d 371 (1983). While the court is in the process of making that determination, it has the authority to issue whatever orders are necessary to protect the parties and to provide for a correct resolution of the jurisdictional issue. Thus the circuit court had emergency jurisdiction between the filing of the ⁵²⁸ complaint and the hearing.

Because the evidence presented at the hearing did not persuade the trial judge that the child was in imminent danger, the circuit court did not thereafter have emergency jurisdiction over this dispute. “Significant Connections” Jurisdiction We reject appellee’s argument that this custody case belongs in the Circuit Court for Baltimore County because the child now has “significant connections” to Maryland. FL § 9-204(a)(2) does provide that a court has jurisdiction over a child custody dispute if (1) the child and at least one contestant have a “significant connection” with the state, and (2) there is available in that state substantial evidence concerning present or future care of the child.” This Court has noted, however, that “the purpose of the act’s section on significant connections is to limit jurisdiction, not proliferate it.” Olson v. Olson, 64 Md.App. 154, 165 , 494 A.2d 737 (1985). When there is a home state, the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (Supp.1993) (P.K.P.A.), forbids the use of significant connections as the basis for jurisdiction in child custody litigation. If there is a conflict between state and federal law, the Supremacy Clause mandates that federal law prevails.

U.S. Const., art. VI § 2. See, e.g., Ex Parte Blanton v. Blanton, 463 So.2d 162, 164 (Ala.1985); Patricia R. v. Andrew W., 121 Misc.2d 103 , 467 N.Y.S.2d 322, 323 (Fam.Ct.1983). The P.K.P.A. prevails in this case.

See Mitchell v. Mitchell, 437 So.2d 122, 126-27 (Ala.Civ.App.1982). In this case there are two home states. Maryland does not have “significant connections” jurisdiction. “Home State” Jurisdiction In this case, the trial judge decided that the Circuit Court for Baltimore County had jurisdiction because “Maryland is the child’s 'home state’ ” according to FL § 9—201(f). We agree. “Home state” as defined in FL § 9—201(f) “means the state in which the child, immediately preceding the time involved, lived with the child’s parents (or) a parent ... for at least six consecutive months.” As the child has lived in ⁵²⁹ Maryland for the past two years, Maryland qualifies as her “home state” under the U.C.C.J.A. In Mainster v. Mainster, 466 So.2d 1228 (Fla.App. 2 Dist.1985), a child who had been living with her mother in Florida was removed to Virginia by her father and remained in Virginia for almost a year before her mother took her back to Florida.

On the day the child was taken from Virginia, her father filed an emergency petition for temporary custody in a Virginia state court. He was awarded custody and attempted to enforce the award in Florida. A Florida trial court dismissed his petition because the child had been kidnapped to Virginia. The appellate court reversed, explaining that the Virginia court did have home state jurisdiction to grant custody because “regardless of the circumstances under which [the child] had been taken to live in Virginia, she had lived there for the requisite six months preceding the father’s filing his action.” 466 So.2d at 1229 .

We hold that Maryland has home state jurisdiction under the statute because the child has lived here for longer than the requisite six months. That jurisdiction should be exercised, however, only if such action is required by the principles that we discuss in Part II of this opinion. A. The “home state” provision of the U.C.C.J.A. was introduced to provide protection for a parent who remains in the home state after the other parent has taken the child away. In enacting that provision, the drafters of the act were attempting to mitigate the advantage enjoyed by the party who has physical possession of the child.

Jeff Atkinson, Modern Child Custody Practice § 3.12,192 (1986). The Commissioners’ Note to the U.C.C.J.A. § 3 states: The main objective [of the six month home state window] is to protect a parent who has been left by his spouse taking the child along. The provision makes clear that the stay at home parent ... may start proceedings in his own state. ⁵³⁰ Nothing in the U.C.C.J.A. provides that there can only be one “home state.” In this case, there are two. Appellant sued for custody in Pakistan shortly after appellee vacated the marital home.

While the Pakistani court had jurisdiction to do so, it conducted a full trial on the merits before awarding custody to appellant. Pakistan was the child’s original “home state.” Maryland has become the child’s “home state” only because appellee, in disobedience of the Pakistani court, hid the child from appellant for over two years. Rare are the occasions on which a second home state should exercise jurisdiction acquired by disobedience of a custody order issued in the child’s original home state. B. The U.C.C.J.A. was enacted to halt child snatching and forum shopping: The Prefatory Note to the U.C.C.J.A. notes a growing public concern over the fact that thousands of children are shifted from state to state and from one family to another each year while their parents or other persons battle over their custody in courts of various states.

Snatching children has become all too commonplace in our mobile society. Possession of the child has historically given one an enormous tactical advantage. More and more, those who lose a court battle are unwilling to accept the judgment of a particular court, and often relocate to another jurisdiction with a view toward having another court take a fresh look at the custody situation. John F. Fader, II & Richard P.