Custody Location When a Child Resides in a Different State Facts

By Morgan P. Appel

A recent unreported* decision of Maryland’s intermediate appellate court shows that, although you live in Maryland, your custody case may not be decided in Maryland even if a Maryland court has the right to make the decision.

In Brooks v. Brooks, at the time of their child’s birth, the family was living in Maryland. The family later moved to Texas and, after Mom got a protective order against Dad, Mom and the child moved to California.

Dad filed in Maryland for custody. Mom asked the Court to dismiss Dad’s request for custody, which was denied by one judge. On review, another judge held a jurisdiction hearing. Dad was present at the hearing in Rockville, Maryland, but Mom was present in a Los Angeles County courtroom before a judge there. The two judges discussed the case both on and off the record.

The case turned on the judges’ interpretation of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a law enacted by every state and the District of Columbia. Under Maryland’s UCCJEA, a Maryland court only has jurisdiction to hear a custody case if:

(1) Maryland is the “home state” of the child, or (2) Maryland was the “home state” of the child within 6 months before the start of the case, and the child no longer lives in Maryland, but at least one parent still does live in Maryland. The “home state” of a child is where the child has lived more than half of the time during the last 12 months. Under this standard, Maryland could have decided the Brooks case.

However, Maryland may decline to exercise jurisdiction at any time if the court determines that Maryland is an “inconvenient forum” and another state would be a more appropriate forum. In determining whether Maryland is an inconvenient forum, the court considers 8 factors:

(i) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.

(ii) The length of time the child has resided outside this State.

(iii) The distance between the court in this State and the court in the state that would assume jurisdiction.

(iv) The relative financial circumstances of the parties.

(v) Any agreement of the parties as to which state should assume jurisdiction.

(vi) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.

(vii) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.

(viii) The familiarity of the court of each state with the facts and issues in the pending litigation.

In Brooks, the Maryland court decided that Maryland is an inconvenient forum, and gave up jurisdiction. The judge zeroed in on 3 factors: (1) the child had been living outside Maryland for more than a year when the decision was made, (2) the child is 2 years old and will not testify, and (3) the people in California with whom she lives and who provide care to her are critical in determining her best interests.

Dad appealed.The Court of Special Appeals affirmed the trial court’s decision and found that Maryland was an inconvenient forum. The Court of Special Appeals determined that the trial court properly applied the factors to the facts of this case:

(i) There was a domestic violence altercation between the parties which led Mom and the child to move to California.

(ii) At the time of the hearing, the minor child had resided outside of Maryland for almost an entire year.

(iii) The distance between California and Maryland is 2,620 miles.

(iv) Both parties were gainfully employed and Mom was not in a superior financial position over Dad.

(v) There was no agreement between the parties on which state should assume jurisdiction.

(vi) Mom’s mother (the child’s grandmother), her pediatrician, maternal extended family, play dates, church/bible school, and swimming classes were all in California.

(vii) Both jurisdictions could decide the issue expeditiously.

(viii) Mom never submitted to Maryland’s jurisdiction because she never filed an answer in Maryland, but Dad submitted to California’s jurisdiction when he filed an answer in California.

* An “unreported” opinion by Maryland’s intermediate appellate court is published on the Court’s website, but may not be cited in any paper, brief, motion, or other document filed in any Maryland court, as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104. However, unreported opinions do offer insight into issues addressed by that court.

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