146 A.3d 567 (Md.App. 2016), 1304-2015, Cabrera v. Mercado

Docket Nº:1304-2015, 2393-2015
Citation:146 A.3d 567, 230 Md.App. 37
Opinion Judge:Leahy, J.
Attorney:Donna K. Rismiller (Rismiller Law Group on the brief) all of Rockville, MD. FOR APPELLANT Suzanne L. Duclos of Rockville, MD. FOR APPELLEE
Judge Panel:ARGUED BEFORE: Krauser, C.J. Berger, Leahy, JJ.
Case Date:September 28, 2016
Court:Court of Special Appeals of Maryland

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146 A.3d 567 (Md.App. 2016)

230 Md.App. 37




Nos. 1304-2015, 2393-2015

Court of Special Appeals of Maryland

September 28, 2016

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court for Montgomery County. Cynthia Callahan, JUDGE.


ARGUED BY: Donna K. Rismiller (Rismiller Law Group on the brief) all of Rockville, MD. FOR APPELLANT

ARGUED BY: Suzanne L. Duclos of Rockville, MD. FOR APPELLEE

ARGUED BEFORE: Krauser, C.J. Berger, Leahy, JJ.


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[230 Md.App. 44] Leahy, J.

This appeal concerns a marriage gone wrong, allegations of abuse, and an infant who was taken by one parent to live in another state without the other parent's knowledge or consent. The circumstance is one that the federal Parental Kidnapping Prevention Act (the " Parental Kidnapping Statute" ), 28 U.S.C. § 1738A (2012), and the Uniform Child Custody Jurisdiction and Enforcement Act (" UCCJEA" ), codified at Maryland Code (1984, 2012 Repl. Vol.), Family Law Article (" FL" ), § 9.5-101 et seq., were enacted to prevent.1

A.M.C.2 was born in June 2014 to Appellant Sugheil Cabrera and Appellee Nelson Mercado--a married couple living in Rockville, Maryland. Four months later, Ms. Cabrera filed a petition for a protective order against Mr. Mercado in the District Court of Maryland. The district court issued a temporary protective order (" TPO" ) granting temporary custody of A.M.C. to Ms. Cabrera, with visitation to Mr. Mercado. At Ms. Cabrera's prompting, the parties asked the court to postpone the scheduled merits hearing, and meanwhile, Mr. Mercado's visits with his son continued every other day without any problems.

When Mr. Mercado and his attorney appeared at the merits hearing, they learned that Ms. Cabrera had sent her attorney [230 Md.App. 45] to dismiss the case without explanation. Soon after, they discovered Ms. Cabrera had fled to Puerto Rico--with A.M.C.

On the very day her attorney dismissed the case in Maryland, Ms. Cabrera filed a complaint for custody in the superior court in Puerto Rico. In response, Mr. Mercado quickly filed a complaint for custody and

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divorce in the Circuit Court for Montgomery County. These filings unleashed a jurisdictional battle over the custody of A.M.C. between the parents, and between the states3 in which they now reside.

Although several custody and affiliated orders have been entered in both Puerto Rico and in Montgomery County, Maryland, this appeal brought by Ms. Cabrera springs mainly from the final custody order entered in favor of Mr. Mercado in the Circuit Court for Montgomery County.4 Central to the issues Ms. Cabrera raises on appeal is the question of jurisdiction over A.M.C. under the UCCJEA and the Parental Kidnapping Statute.

We hold that Maryland is the child's " home state" under both statutes, and that Maryland already made the initial custody determination by the time Ms. Cabrera filed her complaint in Puerto Rico. Accordingly, the circuit court did not err or abuse its discretion in entering an emergency temporary custody order or a final custody order in Mr. Mercado's favor.


A. Dismissal of Petition for Protective Order

Ms. Cabrera and Mr. Mercado5 were married on December [230 Md.App. 46] 12, 2013 in Rockville, Maryland. The couple resided in Clarksburg, Maryland, and both were employed at the National Institutes of Health (" NIH" ) in Rockville, Maryland.6 Their only child, A.M.C., was born on June 21, 2014.

On October 25, 2014, Ms. Cabrera petitioned the District Court of Maryland in Montgomery County for a protective order--for herself and A.M.C.--against Mr. Mercado. In the petition, Ms. Cabrera claimed that she " feared for [her] safety" and that Mr. Mercado was " threatening, harassing and intimidating [her] for some time now[,] and it has become a pattern . . . ." She further alleged that Mr. Mercado had displayed a pattern of obsessive activity, that she felt " stalked and harassed," and that he had been tracking her activities. Specifically, Ms. Cabrera described two incidents that she claimed occurred on October 24 and 25, 2014: This morning while I as leaving the house my husband blocked my entrance[.] Also while I was putting the baby in the carseat[,] he pushed the car door attempting to hurt me when I asked him for some space while securing the baby in the car.

* * *

Last night (10/24) I arrived home at 8:30 pm and he snatched the baby away from me the minute I walked in the house. He was questioning me where was I saying " God knows what you've been doing and who you've been with[.]" He made a threat that " I would know what he had for me in due time[.]" I

Page 573 replied saying that I wasn't going to get intimidated by him. . . .

Ms. Cabrera complained that she was being subjected to Mr. Mercado's general pattern of controlling behavior, including that he listened to her phone calls, that his body language was [230 Md.App. 47] intimidating, and that he had " snatche[d]" A.M.C. from her arms. She also included complaints that more reflected anger or frustration rather than fear, such as her allegations that Mr. Mercado " [d]oesn't take his fa[ir] share of responsibilities" and " refuses to help with childcare and/or housework" and that she " constantly needs to remind [Mr. Mercado] to put the money in the household account." The only allegations she presented in the petition that were in any way directed toward A.M.C.--rather than toward herself--were that Mr. Mercado " likes to snatch the baby from [her] when [she's] holding him[,]" and that he raises his voice at A.M.C. when the baby gets fussy.

The district court issued an ex parte interim protective order for the benefit of Ms. Cabrera and A.M.C. against Mr. Mercado on October 26, 2014. The order, by its terms effective only through October 28, stated that there were " reasonable grounds to believe" Mr. Mercado had committed the offenses of assault and stalking, and ordered that Mr. Mercado not abuse, threaten, harass, contact, or attempt to contact Ms. Cabrera. The order further directed Mr. Mercado vacate and stay away from the couple's Clarksburg residence, and granted Ms. Cabrera temporary use and possession of the home. Mr. Mercado abided by the protective order and immediately left the house upon receiving a copy.

At the ensuing protective order hearing on October 28, 2014, Mr. Mercado and his counsel appeared along with Ms. Cabrera. The district court issued a TPO at the conclusion of the hearing. Similar to the interim protective order, the TPO recited the district court's finding that there were reasonable grounds to believe Mr. Mercado had assaulted Ms. Cabrera on October 25, 2014. The TPO ordered that Mr. Mercado not abuse, threaten to abuse, harass, or contact Ms. Cabrera, and further ordered that he stay away from Ms. Cabrera's residence and place of employment. Notably, the TPO awarded custody of A.M.C. to Ms. Cabrera until the final protective order hearing, which was scheduled for November 5, 2014, and allowed for a three-hour supervised visitation session on November 1, 2014.

[230 Md.App. 48] Ms. Cabrera, Mr. Mercado, and their respective attorneys appeared for the scheduled proceeding on November 5, 2014, and requested the district court extend the term of the TPO to November 17, 2014. According to Mr. Mercado, he agreed to this postponement so that the parties could negotiate visitation with A.M.C. on their own. The amended TPO provided for six visitation sessions between November 5 and November 14, 2014.7

On the morning of November 17, 2014, Mr. Mercado and his counsel appeared in court. Ms. Cabrera did not appear. Instead, Ms. Cabrera's counsel appeared and requested dismissal of the petition for protective order without explanation. The district court dismissed the case.8

B. Flight to Puerto Rico

Ms. Cabrera fled to Puerto Rico with A.M.C., without Mr. Mercado's knowledge

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or consent, on November 15, 2014--just two days prior to the scheduled hearing that was extended at her request. The same day that Ms. Cabrera's petition for protective order was dismissed, on November 17, 2014, Ms. Cabrera filed a complaint for custody of A.M.C. in the Superior Court of Puerto Rico for the Judicial Region of Bayamon.9 The complaint alleged that Mr. Mercado " exhibit[ed] a pattern of domestic violence" that made cohabitation impossible. The complaint further alleged: 9. That [Mr. Mercado] is a citizen of Bolivia[10] and although he holds U.S. citizenship, he has expressed his desire to [230...

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