Child Custody Jurisdiction

• Jurisdiction: Maryland

II. CHILD CUSTODY JURISDICTION

A. Inherent

Family Law §§ 1-201 and 5-203 declare the courts' broad and inherent power over minors.¹⁰ Maryland courts of equity have broad inherent powers in matters of child custody and visitation. The range of a court's subject matter jurisdiction is not dependent upon the terms of a statute. As firmly stated in Conover v. Conover:¹¹

The General Assembly has granted equity courts jurisdiction over the "custody or guardianship of a child." Md. Code (1984, 2012 Repl. Vol.), Family Law ("FL") Article §1-201(b)(5). As part of their broad power to fashion appropriate relief, equity courts have "plenary authority to determine questions concerning the welfare of children." Stancill v. Stancill, 286 Md. 530, 534 (1979). "In other words, a court of chancery stands as a guardian of all children and may interfere at any time and in any way to protect and advance their welfare and interests." Ross v. Hoffman, 280 Md. 172, 176 (1977).

1. Domicile rule

Until 1968, Maryland followed the "domicile" rule. A court had jurisdiction over custody matters only if the child at issue was "domiciled" in this State.¹²

2. Continuing jurisdiction

The domicile rule was expanded by the concept of "continuing jurisdiction," which gives a court having initial jurisdiction over a custody dispute "continuing jurisdiction," even if a child later became domiciled in another state, or in another county. For example, if the Anne Arundel County Circuit Court decides a custody case, it has continuing jurisdiction to hear all later modification or contempt matters related to that case. (Although remember, it may not later be a proper venue). Originally, an exercise of continuing jurisdiction required a prior exercise of original jurisdiction by the court. This requirement was eliminated by Fam. Law § 9-302.

Fam. Law § 9-302(a). A Maryland court retains jurisdiction over a child who is removed from Maryland by one of its parents if:

(1) The parents are separated or divorced and this State was:

(i) the marital domicile of the parents; or

(ii) the domicile in which the marriage contract was last performed;

(2) One of the parents was a resident of this State when the child was removed and that parent continues to reside in this State; and

(3) The court obtains personal jurisdiction over the parent who removes the child.

Family Law § 9-302 did not change the jurisdictional provisions of the former Uniform Child Custody Jurisdiction Act (UCCJA).¹³ Presumably that law is unchanged by the Maryland Uniform Child Custody Jurisdiction and Enforcement Act (MUCCJEA).¹⁴ If a jurisdictional base exists under Fam. Law § 9-302, the filing party must still satisfy the notice requirements of MUCCJEA.¹⁵ If a proceeding is pending elsewhere, the mandatory stay provision would apply.¹⁶

B. Voluntarily Submitting to Court's Jurisdiction

In a proceeding to establish or enforce a support order or to determine parentage, an individual can submit to the jurisdiction of a court by entering an appearance or by filing a responsive pleading, thus waiving any contest to personal jurisdiction.¹⁷ "Submitting" to a court's legitimate jurisdiction should be distinguished, however, from the circumstance in which two parties attempt to create jurisdiction by mutual consent. Jurisdiction cannot be conferred by consent of the parties.¹⁸

C. Parents Residing Together

A court has jurisdiction to resolve a child custody dispute between married parents when the parents are living together.¹⁹ Likewise, a court has jurisdiction to resolve a child custody dispute between unmarried parents when the parents are living together.²⁰ At the heart of the Court's analysis was that the long-established principle that a court's authority to decide issues of custody in the best interests of minor children is inherent and " 'd[oes] not emanate from the legislature.' Taylor v. Taylor, 306 Md. 290, 298-99 (1986) (citing Glading v. Furman, 282 Md. 200, 208 (1978); Coleman v. Coleman, 228 Md. 610, 613 (1962))."²¹

D. Domestic Violence Proceedings

Maryland's domestic violence statute²² allows the responding court to address the issues of custody and visitation. For example, Fam. Law §§ 4-504.1(c)(4)(ii), 4-505(a)(2)(vii), 4-506(d)(7) all authorize the court to award temporary custody of a minor child of the person eligible for relief and the respondent.

Domestic violence proceedings can be initiated at either the circuit or district court levels. If, when such a proceeding is initiated, a divorce/custody case is pending, some courts are reluctant to address the custody/visitation issues on any long-term basis.

1. Entering into a consent order

The intangible prejudicial results of a finding of spousal abuse can give a tactical advantage to the petitioner in any subsequent divorce, support, or custody action. Despite a spouse's well intended attempt to avoid exacerbating an already difficult situation by "consenting" to the entry of an order, while adamantly denying that the incident occurred or in any way constituted abuse, the "victimized" spouse's ongoing reference to the consent order as an "admission" to others, most particularly the children involved, is a serious concern which must be factored into every such "consent."

2. Caution-Appeals from District Court consent orders

When parties in a domestic violence proceeding consent to a protective order in the district court, the respondent is estopped from making an appeal to the circuit court.²³ Fam. Law § 4-507 does provide for a de novo appeal from the district court to the circuit court in most cases. However, that right may be lost either by acquiescence in, or consent to, a final judgment. Absent fraud or coercion, a party may not appeal from a consent judgment such as the order in Suter v. Stickey. "Maryland common law is clear that, as a general rule, the only persons who may appeal a judgment are those aggrieved by the judgment."²⁴ The corollary that a judgment entered by consent may not be appealed is supported in Bryant v. Howard County Department of Social Services.²⁵ There is no express declaration contained in the text of Fam. Law § 4-507 or anywhere in the legislative history that purports to abrogate or limit the common law rule that a party must be aggrieved in order to have the right to appeal.

E. Jurisdictional Conflicts

1. Uniform Child Custody Jurisdiction and Enforcement Act

a. History

Maryland's Uniform Child Custody Jurisdiction Act²⁶ was replaced with the Maryland Uniform Child Custody Jurisdiction and Enforcement Act,²⁷ which is in effect for cases filed after 2004. Despite some substantive differences, both versions of this statute were enacted to halt child snatching and forum shopping. The Prefatory Note to the UCCJA noted the growing public concern over the fact that thousands of children were shifted from state to state and from one family to another each year while their parents or other persons battled 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.²⁸

Maryland was the 35th state, (plus the District of Columbia), to enact the Uniform Child Custody Jurisdiction and Enforcement Act. It has nothing to do with the decision-making criteria applicable in resolving child custody disputes. It determines only the preliminary issue of which state court should have and may exercise jurisdiction. The MUCCJEA is based upon and is substantially similar to the former Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which was drafted, approved, and recommended for enactment in all states by the National Conference of Commissioners on Uniform State Laws in 1997. The bill applies only to cases filed to establish or modify child custody or motions or other requests for relief filed in existing child custody cases on or after the bill's October 1, 2004, effective date.

MUCCJEA has two main effects:

(1) It reconciles certain conflicts between the former UCCJA and the Federal Parental Kidnapping Prevention Act, which implements the Full Faith and Credit Clause and prescribes when states must recognize and/or enforce custody decrees from other states and when they can refuse to modify out-of-state decrees.

(2) Adds interstate civil enforcement for child custody orders. One key improvement is speedy enforcement of visitation and access orders entered in a home state.

MUCCJEA does NOT apply to adoptions, child support, dissolution of marriage, or property distribution issues.

The former MUCCJA created four separate criteria to establish jurisdiction in custody cases. However, it did not establish a clear and predictable priority among them. The absence of that hierarchy led to the confusion which the MUCCJEA was designed to correct. The Federal Parental Kidnapping Prevention Act (PKPA) also confused the issue because it...