United States: Pilkington v. Pilkington: Key UCCJEA Jurisdiction Case Fills In The Blanks

Last Updated: January 13 2017
Article by Leah M. Hauser and Kelly A. Powers

Pilkington v. Pilkington, No. 2766, SEPT.TERM, 2015, 2016 WL 6962572 (Md. Ct. Spec. App. Nov. 29, 2016), is a key case for all interstate family law attorneys. It answers so many of the unanswered Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) questions in a reported opinion.

The appellate court found that the trial court did not have subject matter jurisdiction to enter its order modifying the parties' custody of their child. The Father and the Mother met and were married in Germany. The Mother is a German national. They are the parents of one child, R.P. The Mother had a child, B.P., who was not a child in common with the Father. The Father is in the United States Army and has completed several deployments. The family travelled in connection with the Father's military stationing. In December 2008, the family left Germany and travelled to Colorado. The parties were thereafter divorced in Colorado and entered into a Parenting Plan. The Parenting Plan provided that the Mother have primary physical custody and that the Father have visitation with the child.

The Father left Colorado, remarried and started a new family in Maryland leaving the Mother and children behind. The Mother had no family or resources in Colorado and could not financially support herself or her children there. At the Father's request, the Mother allowed the children to visit the Father in Maryland for Christmas in December 2013. Thereafter, the Mother requested permission from the Father to travel with the children to Germany. The Father agreed and the Mother travelled to Germany with both children for the agreed period. While there, the Mother realized that Germany was an appropriate place to raise her children and she had the financial support that she did not have on her own in Colorado. She therefore remained in Germany with the children. The Father acquiesced in this decision and even came to visit the children in Germany.

In June 2015, the Mother agreed for the children to visit the Father in Maryland for the summer break. At the end of the summer break, the Father unilaterally decided to keep the children in Maryland and filed an emergency request for custody pursuant to the UCCJEA. On September 24 the lower court heard the case. At an emergency custody hearing, without receiving a single piece of evidence or testimony, the lower court incorrectly found that it had subject matter jurisdiction. The lower court then placed the case on the standard domestic track and proceeded to hear the "merits" of the case. The lower court ordered a custody evaluation.

On December 29, 2015, the case came before a magistrate for an "Evaluator Hearing." The Mother did not participate in the Evaluator Hearing. The custody evaluator was purportedly unable to make contact with the Mother, but was able to view the interactions of the Father and child (who is in Germany) by Skype. The Magistrate found that the Mother was not "play[ing] by the rules." The Magistrate determined—based on scant "evidence"—that the Father "will continue to facilitate a relationship between [R.P.] and the [Mother]." The Magistrate recommended that the court grant the Father sole legal and primary physical custody. Notwithstanding the lack of jurisdiction, the Magistrate's "finding" was of course contrary to the other evidence in the record that the Mother had facilitated a visit between the child and the Father in Germany and then again when she sent the children by agreement to visit the Father in Maryland for the summer break—which is the only reason the children were present in Maryland for these "emergency custody" proceedings.

Thereafter, the lower court, relying solely on the Magistrate's Report—the record being devoid of any independent review—signed an order on January 12, 2016 granting the Father "Sole Legal and Primary Physical Custody of [R.P.]"

The appellate court made the following findings:

  1. "[T]he circuit court in this case exceeded the jurisdictional restraints imposed under the Maryland UCCJEA by entering an order that modified a foreign jurisdiction's existing custody order when Maryland was not the child's home state and there was no other jurisdictional basis to modify an existing order under FL § 9.5-203."
  2. Temporary Emergency Jurisdiction: The case was not a close call for temporary emergency jurisdiction, which the appellate court acknowledged in finding that the case did not proceed under that theory despite the Father's assertions in his complaint.
  3. Home State Jurisdiction: "Here, it is clear that Maryland was not R.P.'s home state because he was only in Maryland for about three months before his father instituted the underlying action." "To the extent the circuit court determined that R.P. had no home state because Germany was not a state, its decision was legally incorrect." The Court reconfirmed that foreign countries are considered states for applying the UCCJEA.
  4. Modification Jurisdiction: "[T]he circumstances presented in this case do not provide a basis under the Maryland UCCJEA for jurisdiction to modify a foreign custody order." "The record demonstrates that Maryland is not the home state under § 9.5-201(a)(1), and, our analysis under § 9.5-201(a)(2)—('a court of another state does not have jurisdiction under item (1) of this subsection, . . . .')—stops short once we determine that Germany was R.P.'s home state at the time of the hearing in this case. Accordingly, we hold that the circuit court erred when it modified the Colorado Order."
  5. Enforcement Jurisdiction: In its Opinion, the appellate court concluded that the Father's request for enforcement "would be confined to the terms of the Colorado Order" and any order enforcing such must "include specific temporal limits . . . something the underlying order granting sole legal and primary physical custody to [the Father] did not do."
  6. The appellate court therefore vacated the lower court's Order modifying custody and remanded the case for further proceedings "with instructions that the court limit itself to the authority contained in the Maryland UCCJEA's enforcement subtitle."

This reported opinion highlights the UCCJEA's very technical approach. It is important for family law practitioners, as well as courts, to be familiar with the UCCJEA and its practical implications as its use will undoubtedly become more frequent in a world where families more often extend across states and internationally.

A link to the Pilkington v. Pilkington opinion may be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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