Toland v. Futagi

BATTAGLIA, J. This case involves the interpretation of the Uniform Child Custody Jurisdiction and Enforcement Act, Sections 9.5-101 to 9.5-318 of the Family Law Article, Maryland Code (1984, 2006 Repl.Vol.). 1 Peter Paul Toland, Jr., 2 Appellant, challenges the Circuit Court for Montgomery County’s determination that a Japanese decree providing guardianship of his minor child to the child’s grandmother, Akiko Futagi, Appellee, without notice to him, did not constitute a violation of his due process rights. He also argues that the Circuit Court’s dismissal of his Complaint to Establish Custody, pursuant to Uniform Child Custody Jurisdiction and Enforcement Act, was error. On our own motion and prior to any proceedings in the Court of Special Appeals, we granted certiorari to consider the following questions: ³⁷⁰ 1. Whether the lower court erred and violated Mr. To-land’s due process rights and fundamental liberty interest in the care, custody and control of his daughter in violation of the United States Constitution[ 3 ] and the Maryland Declaration of Rights.[ 4 ] 2.

Whether the lower court erred and misapplied the UCCJEA when it granted the Appellee’s Motion to Dismiss. We shall hold that the Circuit Court’s dismissal of Mr. To-land’s complaint did not violate his due process rights under the United States Constitution and the Maryland Declaration of Rights, as they were not implicated by the Japanese decree. We also shall hold that the Circuit Court properly applied the Uniform Child Custody Jurisdiction and Enforcement Act to conclude that it should not exercise jurisdiction over Mr. Toland’s Complaint to Establish Custody of his daughter, because the child had no connection with Maryland, and Japan, where she was born and has lived her entire life, had not declined custody jurisdiction. In so holding, we shall affirm the Circuit Court’s dismissal of Mr. Toland’s Complaint to Establish Custody.

Introduction Whenever a child custody dispute in Maryland involves another state or another country, the Maryland Uniform Child Custody Jurisdiction and Enforcement Act is implicated. In re Kaela C., 394 Md. 432, 454 , 906 A.2d 915, 928 (2006). The Maryland Uniform Child Custody Jurisdiction and Enforcement Act, which is currently codified as Sections 9.5-101 ³⁷¹ through 9.5-318 of the Family Law Article, was enacted in 2004 to replace its predecessor, the Maryland Uniform Child Custody Jurisdiction Act, which was initially enacted in 1975 and codified as Sections 184 to 207 of Article 16, Maryland Code (1957,1966 Repl.Vol., 1977 Supp.) and was later repealed and recodified 5 as Sections 9.5-201 to 9.5-403 of the Family Law Article, Maryland Code (1984,1985 Supp.). By way of background, in 1968, the National Conference of Commissioners on Uniform State Laws 6 drafted the Uniform Child Custody Jurisdiction Act to address the problem of conflicting custody decrees among states and foreign countries and 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.” Unit'.

Child Custody Jurisdiction Act, Prefatory Note, 9 U.L.A. Part IA, at 262 (1999); see also In re Kaela C., 394 Md. at 454, 906 A.2d at 928 (The Uniform Child Custody Jurisdiction Act was designed to “address both the increased mobility of individuals and the negative results of that mobility, namely the rampant kidnaping of children by parents looking to relitigate custody determinations in a more favorable forum, a tactic known as ‘seize and run.’ ”). The concern was that movement of a child from state to state, by parents or family members seeking a more favorable custody decree in another jurisdiction, created an instability that inhibited the child’s ability to develop personal attachments or a sense of belonging in a community. ³⁷² Courts, including the Supreme Court of the United States, had yet to clarify whether the Full Faith and Credit Clause of the United States Constitution applied to custody determinations, which often led to “a custody decree made in one state one year [that] is often overturned in another jurisdiction the next year or some years later and the child is handed over to another family, to be repeated as long as the feud continues.” 9 U.L.A. Part IA, at 268-64. In order to determine which state had jurisdiction, the Uniform Child Custody Jurisdiction Act limited interstate custody jurisdiction to the child’s “home state,” where the child had lived for at least six months prior to the proceeding, or the state that had strong contacts with the child and family. Unif.

Child Custody Jurisdiction Act, Section 3(a), 9 U.L.A. Part IA, at 307. Where a state was not the home state or of significant connection to the child, then only in instances of emergency, such as when the child was abandoned in the state, or when no other state had jurisdiction, would a state assume jurisdiction over an interstate child custody determination. Id. To further discourage competition among states, the Uniform Child Custody Jurisdiction Act also required that a court decline jurisdiction upon learning of an ongoing proceeding in another state, and permitted a court to decline jurisdiction upon determining that the petitioner had wrongfully taken the child from another state, or that the court was an inconvenient forum because, for example, another state had a closer connection with the child.

See Unif. Child Custody Jurisdiction Act, Sections 6, 7, 8, 9 U.L.A. Part IA, at 474, 497-98, 526. The Act also required a court to maintain a registry of out of state custody decrees and to recognize and enforce decrees from other states and foreign countries. Unif.

Child Custody Jurisdiction Act, Section 16, 9 U.L.A. Part IA, at 625-26. In effect, the Uniform Child Custody Jurisdiction Act required a court, upon learning of an interstate dimension of a child custody proceeding brought before it, to engage in a two-step inquiry: determine whether it had jurisdiction and, if so, whether it should exercise jurisdiction. ³⁷³ In 1997, the Commissioners revised the Uniform Child Custody Jurisdiction Act “in light of federal enactments and almost thirty years of inconsistent case law.” Unif. Child Custody Jurisdiction & Enforcement Act, Prefatory Note, 9 U.L.A. Part IA, at 650. One of the federal enactments referred to was the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, 7 which expressly provided that full faith and ³⁷⁴ credit must be given to child custody determinations.

The Parental Kidnapping Prevention Act conflicted with the Uniform Child Custody Jurisdiction Act in part because the latter provided that both the home state of the child and the state having significant connections with the child and family could exercise jurisdiction, whereas the Parental Kidnapping Prevention Act gave exclusive jurisdiction to the home state, so as to avoid concurrent jurisdiction with another state. See Section 1738A(c)(2)(A) of Title 28, United States Code. The Maryland Uniform Child Custody Jurisdiction Act was enacted in 1975, in order to help eliminate jurisdictional competition and conflict with courts of other States, discourage continuing controversies over child custody, avoid re-litigation of custody decisions of other States, and 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. Legislative Council of Maryland, Report to the General Assembly of 1975: Proposed Bills 174-75 (1975).

The Maryland Child Custody Jurisdiction and Enforcement Act was enacted in 2004 and repealed the Maryland Uniform Child Custody Jurisdiction Act at the same time; the purpose of the new Act remained the elimination of competition among states in determining interstate child custody disputes. See Garg v. Garg, 393 Md. 225, 239 , 900 A.2d 739, 747 (2006) (“Jurisdiction or its exercise under both the UCCJA and UCCJEA is a threshold legal issue that the law requires be resolved expeditiously.”); see also Unif. Child Custody Jurisdiction & Enforcement Act, Section 101 cmt., 9 U.L.A. Part IA, at 657. The Maryland Uniform Child Custody Jurisdiction and Enforcement Act, codified in Section 9.5-201 (a) of the Family Law Article, prescribes that a Circuit Court in this State has ³⁷⁵ jurisdiction to entertain a child custody complaint if Maryland is the home state of the child: (a) Grounds for jurisdiction. — Except as otherwise provided in § 9.5-204 of this subtitle, a court of this State has jurisdiction to make an initial child custody determination only if: (1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State; (2) a court of another state does not have jurisdiction under item (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 9.5-207 or § 9.5-208 of this subtitle, and: (i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and (ii) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships; (3) all courts having jurisdiction under item (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under § 9.5-207 or § 9.5-208 of this subtitle; or (4) no court of any other state would have jurisdiction under the criteria specified in item (1), (2), or (3) of this subsection.

Section 9.5-201(a) of the Family Law Article. The Act also provides that a Circuit Court may decline to exercise jurisdiction if it determines that it is an inconvenient forum, pursuant to Section 9.5-207 of the Family Law Article, or that “a person seeking to invoke its jurisdiction has engaged in unjustifiable ³⁷⁶ conduct,” under Section 9.5-208 of the Family Law Article. It also contains a catch-all “vacuum jurisdiction” provision, Section 9.5 — 201(a)(4) of the Family Law Article, which allows a court in this State to exercise jurisdiction where no other state, including a foreign country, can. 8 In the present case, Maryland is not the home state of Mr. Toland’s child, while Japan is. At issue is the international application of the Maryland Uniform Child Custody Jurisdiction and Enforcement Act, which is discussed in Section 9.5-104 of the Family Law Article: (a) Foreign country treated as state. — A court of this State shall treat a foreign country as if it were a state of the United States for the purpose of applying Subtitles 1 and 2 of this title.

(b) Recognition and enforcement of child custody determination made by foreign country. — Except as otherwise provided in subsection (c) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this title must be recognized and enforced under Subtitle 3 of this title. (c) Applicability of title. — A court of this State need not apply this title if the child custody law of a foreign country violates fundamental principles of human rights. Section 9.5-104 of the Family Law Article. Subsection (c) contains the language upon which Mr. Toland relies to assert that a Maryland circuit court can exercise jurisdiction over his child in Japan.

That section provides that a Maryland court need not apply the Maryland Uniform Child Custody Jurisdiction and Enforcement Act in a situation in which the child ³⁷⁷ custody laws of a foreign country “violate!] fundamental principles of human rights.” Section 9.5-104(c) of the Family Law Article. Although the term “fundamental principles of human rights” was left undefined in the Act proposed by the Commissioners, as well as in the Maryland statute, the drafters alluded to a similar provision in the Hague Convention on the Civil Aspects of Child Abduction, which permits a country to refuse to return a child if the return would violate “the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms,” which has been interpreted by the United States Department of State as “utterly shock[ing] the conscience or offendfing] all notions of due process.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10,494, 10,510 (1986); see also Unif. Child Custody Jurisdiction & Enforcement Act, Section 105 cmt., 9 U.L.A. Part IA, at 662. Factual and Procedural Background Mr. Toland filed a Complaint To Establish Custody in the Circuit Court for Montgomery County, alleging that he was entitled under Section 5-203(a) of the Family Law Article, Maryland Code (1984, 2006 Repl.Vol.), 9 as the sole surviving parent, to custody of his nine-year-old daughter, Erika, 10 who presently lives with her maternal grandmother, Akiko Futagi in Japan, after having lived in Japan since her birth.

Etsuko, Mr. Poland’s ex-wife and the mother of the child, had previously been awarded custody by a Japanese Court. Etsuko died in 2007, and a Japanese decree issued thereafter, and without notice to Mr. Toland, appointed Ms. Futagi, the grandmother, as the guardian of Erika. Upon learning of the guardianship decree, Mr. Toland amended his complaint and alleged that Maryland was the appropriate forum to determine ³⁷⁸ custody because he resided in this State, and under the Uniform Child Custody Jurisdiction and Enforcement Act, Japan cannot be considered the minor child’s home state because the minor child is only physically present in Japan as a result of the maternal grandmother’s unjustifiable conduct and because Japan’s family court system does not comply with the standards of due process, fundamental fairness and the norms of international comity required by this State. Ms. Futagi responded to Mr. Toland’s complaint and filed a “Motion to Dismiss Custody Proceeding for Lack of Personal Jurisdiction and Pursuant to the Uniform Child Custody Jurisdiction Act of Maryland and For An Award of Counsel Fees under Maryland Statute Section 9.5-208.” 11 She attached to a subsequent Memorandum of Law in Support of the Motion to Dismiss an affidavit of her Japanese family law expert, Yori ³⁷⁹ michi Ishikawa, 12 who attested that under Japanese law, Ms. Futagi was awarded guardianship, which neither equates to custody nor prevents Mr. Toland from pursuing custody in Japan, and that notice of the guardianship proceeding to the biological parent was not required.

A hearing on the Motion to Dismiss occurred, during which Mr. Toland and his expert on Japanese family law, Mikiko Otani, testified. Ms. Otani confirmed that Japanese law did not require notice of the guardianship proceeding to Mr. Toland and that the guardianship decree did not prevent Mr. Toland from pursuing custody of his daughter in a Japanese court. Judge Steven G. Salant of the Circuit Court for Montgomery County, the presiding judge, thereafter issued a Memorandum Opinion, which included findings of fact and conclusions of law. The findings of fact are not in dispute before us. 13 ³⁸⁰ Judge Salant found that in 1995, Mr. Toland married Etsuko Futagi in Japan and they later had one child, Erika, who was born in Japan and has not left that country.

In 2003, Etsuko took Erika, ostensibly without Mr. Toland’s consent, to live with her mother Akiko Futagi and later obtained a Japanese divorce decree that awarded the wife custody of Erika. Judge Salant stated: Plaintiff Peter Paul Toland, Jr. (“Plaintiff’) and Etsuko Futagi Toland (“Mother”) were married in Japan on March 22, 1995. After the marriage, the Mother and Father continued to live in Japan as a result of the Father’s military service. In June 1996, the Father was transferred to Seattle, Washington, where the couple resided for the next three years, until July 1999 when the couple returned to Japan after the Plaintiff was transferred there.

The minor child, Erica Toland (“child”), was born on October 17, 2002 in Japan. Plaintiff contends the child is a United States citizen, whereas Defendant contends the child has dual citizenship in Japan and the United States. The Mother became a United States citizen on April 18, 2003. On July 13, 2003, the Plaintiff returned from work to discover the Mother had left the family home with the child.

The Mother filed for divorce and, over the Plaintiffs jurisdictional objection, on September 29, 2005, the Tokyo Family Court issued a decree of divorce awarding the Mother custody of the minor child. (internal footnotes omitted). Judge Salant then found that after the wife’s death in 2007, Erika remained in Japan with her grandmother, Ms. Futagi, who was awarded guardianship of the child by a Japanese court: The Mother died on October 31, 2007. Since that time, the child has lived with her maternal grandmother, Akiko ³⁸¹ Futagi (“Defendant”) in Japan.

The Plaintiff alleges that he has seen the child only twice since July 13, 2003, and the Defendant has continued to deny him all access to the minor child. Defendant posits that Plaintiff last sought to visit the child in September or October 2007, before the Mother’s death, and has not requested visitation since that time. The Plaintiff filed a Complaint to Establish Custody in the Circuit Court for Montgomery County, Maryland on October 2, 2009 (D.E.# 1). After learning that the Defendant had been appointed the legal guardian of the child by the Japanese Court, Plaintiff filed an Amended Complaint to Establish Custody on September 1, 2010 (D.E.# 22) (“Complaint”) to incorporate said facts.

(internal footnotes omitted). Judge Salant, in a footnote, observed that Mr. Toland was not notified of the proceeding awarding guardianship to Ms. Futagi: Plaintiff had no notice of any guardianship proceeding in Japan and therefore did not participate in the guardianship proceeding. In his conclusions of law, Judge Salant determined that Japan was the home state of Erika under Maryland’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, Section 9.5-201 (a)(1) of the Family Law Article, because Erika “has lived exclusively in Japan for her entire life”: A court has jurisdiction to make a child custody determination if that State is the home state of the child on the date of the commencement of the proceeding. § 9.5-201(a)(l). “Home state” is defined as 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. § 9.5-101(g). The child at issue has lived exclusively in Japan for her entire life.

It is uncontested that at no time has the child lived in the State of Maryland. Accordingly, Japan is considered the home state of the child and Japan has jurisdiction to enter a child custody decree pursuant to §§ 9.5-201(a)(l) and 9.5-104(a). At this time, ³⁸² Japan has not declined to exercise jurisdiction on the ground that Maryland (or any other jurisdiction) is the more appropriate forum, therefore no State other than Japan can claim jurisdiction under § 9.5-201(a)(2)-(a)(3). Judge Salant then addressed Mr. Toland’s argument that Maryland could exercise “vacuum jurisdiction” under Section 9.5-201(a)(4) of the Family Law Article, because Japan should have declined jurisdiction under Section 9.5-208, as Erika’s presence in that jurisdiction was allegedly caused by the wife and grandmother’s “unjustifiable conduct,” when the wife took Erika from their family home in 2003.

Without addressing whether their conduct was unjustifiable, Judge Salant concluded that the Circuit Court could not exercise “vacuum jurisdiction” until after Japan declined jurisdiction, which Japan had not done: Plaintiff argues that despite the above analysis, this Court has jurisdiction pursuant to § 9.5-201(a)(4), often termed the “vacuum jurisdiction” provision, to make an initial custody determination. Plaintiff contends that Japan, even were it to be considered a State for UCCJEA purposes, could not claim home state jurisdiction because such jurisdiction exists solely due to the Mother’s, and later the Defendant’s, unjustifiable conduct. Plaintiff contends that Japan would be required to decline jurisdiction under § 9.5-208(a) because Japan could only have obtained jurisdiction due to the Mother’s and the Defendant’s unjustifiable conduct, namely their “surreptitiously removing the minor child” and refusing to allow the Plaintiff contact with the child. Thus, Plaintiff contends that vacuum jurisdiction must apply as there is no other state that would have home state, significant connection, or more appropriate forum jurisdiction.

This Court cannot exercise jurisdiction pursuant to § 9.5-201(a)(4). While Plaintiffs argument that Japan would be required to decline jurisdiction due to the Mother’s and the Defendant’s unjustifiable conduct may in fact be correct, this Court cannot assume jurisdiction on that supposition alone. The issue of whether Japan would be required to decline jurisdiction under § 9.5-208(a) is for the Japanese ³⁸³ courts to determine. This Court cannot speculate as to a decision that may be made by the Japanese court.

Before this Court could exercise jurisdiction pursuant to § 9.5-201(a)(4) Japan would have to decline jurisdiction; as Japan has not done so, this Court cannot exercise subject matter jurisdiction pursuant to § 9.5-201(a)(4). (emphasis in original). Judge Salant addressed Mr. Toland’s second argument related to the exception to the application of the Maryland Uniform Child Custody Jurisdiction and Enforcement Act, under Section 9.5-104(c) of the Family Law Article, because, allegedly, Japan’s child custody laws violate the “fundamental principles of human rights”: Plaintiffs final argument is that this Court is not required to apply the UCCJEA jurisdictional requirements to this case because Japan’s custody laws violate fundamental principles of human rights. See § 9.5-104(c).

Plaintiffs Opposition listed a number of ways in which his, and the child’s, rights have allegedly been violated by the Mother, by the Defendant, and by Japanese law. It should first be noted that this Court is not determining whether the Plaintiffs or the child’s rights have been or would be violated pursuant to Japanese law. Nor is the issue before the Court to determine whether comity would or should be accorded to a child custody determination made in Japan, or whether Japan would accord comity to or enforce a custody determination made pursuant to Maryland law. The sole issue before the Court is whether Japan’s child custody law so violates fundamental principles of human rights as to justify employing § 9.5-104(c) and assuming jurisdiction for this custody proceeding.

(emphasis in original). Judge Salant observed that the term “fundamental principles of human rights” was left undefined by the Uniform Child Custody Jurisdiction and Enforcement Act, but that the Comment of the National Conference of Commissioners on Uniform State Laws suggested that fundamental fairness could be included within the term’s meaning: ³⁸⁴ Neither the Comments to the UCCJEA nor Maryland statute or case law define the term “fundamental principles of human rights.” While the Comments do note that a court may refuse to apply the UCCJEA when the child custody law of the other country violates “basic principles relating to the protection of human rights and fundamental freedoms,” the drafters of the UCCJEA took no position on what laws relating to child custody might violate such “fundamental freedoms.” See Comments, Section 105: International Application of Act at 14. Fundamental freedoms, Judge