Gestl v. Frederick
| Decision Date | 03 July 2000 |
| Docket Number | No. 1231,1231 |
| Citation | 754 A.2d 1087,133 Md. App. 216 |
| Parties | Donna GESTL v. Lisa M. FREDERICK, et al. |
| Court | Court of Special Appeals of Maryland |
Cynthia E. Young, Annapolis, and Shannon Minter, San Francisco, CA, for appellant.
Theresa A. Furnari, Towson, for appellee.
Argued before ADKINS, ROBERT F. FISCHER (Retired, Specially Assigned) and H. KEMP MacDANIEL (Retired, Specially Assigned), JJ. ADKINS, Judge.
We must decide in this appeal whether the State of Maryland is the proper forum to hear a child custody dispute under the Uniform Child Custody Jurisdiction Act. Donna Gestl, appellant, argues that the Circuit Court for Baltimore City erred in dismissing her child custody dispute against Lisa Frederick, appellee. Appellant raises two issues on appeal, which we have rephrased slightly:
I. Whether the trial court erred in declining jurisdiction because Maryland was an inconvenient forum.
II. Whether the trial court erred in dismissing the case rather than staying the proceedings.
Appellee is the biological mother of a child with many special needs.2 According to appellee, the child "has been evaluated as developmentally delayed, speech and learning disabled, Attention Deficient Hyperactivity disorder and autistic like disorder."
While pregnant with the child in November 1992, appellee moved from the state of Tennessee to the State of Maryland. The child was born in Maryland on March 13, 1993. At some point, the parties became involved in an intimate relationship and appellee and the child moved into appellant's home in July 1993.
The parties dispute what occurred during the course of their relationship. Appellant alleges that while she was not the child's "biological mother, [she has] been his parent since birth." She asserts that she was appellee's "birthing coach" and was present at the child's birth. She claims she shared parenting responsibilities with appellee and that the two "generally held themselves out to the world as a family unit." Moreover, she alleges that her family saw the child on a regular basis and treated him as a member of their family. She further asserts that appellee "chose a name for [the child] to call [appellant]: `Mim', a derivative of mom." Finally, she claims that she assumed primary financial responsibility for appellee and the child.
Appellee, on the other hand, alleges that appellant's "role regarding the child was one of recreation and entertainment." She asserts that the parties never discussed a joint parenting arrangement regarding the child and that appellant never suggested that she would assume financial responsibility for the child. Additionally, appellee claims that she received governmental assistance to meet the child's needs and that appellant insisted she obtain employment, which she did in March 1997. Appellee also asserts that appellant has a violent temper and would argue with her in front of the child and that appellant threatened "to take [the child] away from [appellee] by going to court and alleging she was an unfit mother."
Appellee moved out of appellant's residence in August 1998 and returned to Tennessee. Appellee claims that since moving to Tennessee, she has become employed as a substitute teacher, and "obtained the services of a pediatrician and enrolled the child in a local elementary school which was equipped and staffed to meet [his] special educational needs."
In November 1998, the Tennessee Department of Children's Services ("Department") filed an action against appellee in the Juvenile Court for Anderson County, Tennessee ("Juvenile Court"), seeking custody of the child.3 In addition, appellee filed in the Juvenile Court a petition to establish paternity against Sparn in May 1999.4
On December 3, 1998, appellant filed a "Complaint for Joint Legal Custody, Pendente Lite and Permanently, and Visitation and Other Relief" in the circuit court. On March 9, 1999, appellee filed a motion to dismiss asserting, inter alia: (1) the court should decline jurisdiction because there was a pending proceeding in Tennessee involving the child and that Maryland was an inconvenient forum; and (2) that appellant lacked standing to pursue the action because appellee "is neither an unfit parent nor do exceptional circumstances exist to overcome the presumption that is it [sic] in the child's best interest to remain with ... his biological parent."
A hearing on appellee's motion was held on May 27, 1999. At the hearing, the court was presented with evidence of the consent judgment appellee entered with the Department and the petition filed in the Juvenile Court by appellee against Sparn to establish paternity. After the hearing, the trial judge contacted a judge in the Juvenile Court, who indicated that two files existed regarding the child: the custody case filed by the Department on November 18, 1998, and the paternity action that was filed on May 19, 1999. The Tennessee judge indicated that the custody case was closed and the paternity case was pending. Additionally, when asked by the trial judge about what a Tennessee court "might do with a non-blood-related person," the Tennessee judge indicated that "in her view, in Tennessee a non-blood-related person is never given custody unless ... there could be proof of `dependency or neglect.'"
On June 21, 1999, the trial court issued a written opinion granting appellee's motion to dismiss. The court found that Maryland did have jurisdiction pursuant to Md. Code (1984, 1999 Repl.Vol.), § 9-204(a)(1) of the Family Law Article ("FL"). Nevertheless, the court held that Tennessee was the appropriate forum to hear the dispute because Tennessee was the more convenient and appropriate forum. In so doing, the court explained:
[T]he great bulk of the contacts, information and expertise concerning the best interest of the child, both presently and in the future, exist in the state of Tennessee. This [c]ourt believes, in accordance with ection 9-207(c), that Tennessee has a closer connection with the parties and the child's family, and that virtually all of the personal and professional evidence concerning the child's present and future best interest is in Tennessee.
Additional facts will be added as necessary to supplement the following discussion.
Appellant contends that the trial court erred in declining jurisdiction. She argues that "although [s]ection 9-207 permits a court to decline jurisdiction if it finds that it is an inconvenient forum, both Maryland case law and the plain language of the [Uniform Child Custody Jurisdiction Act] prohibit a court from doing so where the proposed alternative forum is only theoretically available and will not actually hear the case." She contends that Tennessee is not an available alternative forum because Tennessee only recognizes a third party's claim to custody in instances of abuse and neglect. According to her, at the very least, the trial court should have stayed the Maryland proceedings under FL section 9-206(c).
All fifty states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction Act ("UCCJA"). Maryland adopted the UCCJA in 1975, and it is codified as the Maryland Uniform Child Custody Jurisdiction Act ("Act"). See FL § 9-201 et seq.
Id. at 160, 494 A.2d 737 (quoting UCCJA, 9 U.L.A. Commissioners' Prefatory Note at 111-12 (1968)).
The UCCJA controls which state has subject-matter jurisdiction over child custody cases. See Harris v. Simmons, 110 Md.App. 95, 102, 676 A.2d 944,
cert. denied, 343 Md. 680, 684 A.2d 454 (1996). The General Assembly has recognized that the purposes of the Act include avoiding jurisdictional competition and conflict with courts of other states in matters of child custody, promoting cooperation with the courts of other states "to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child," assuring that litigation concerning the custody of a child takes place ordinarily in the state with which the child and the child's family have the closest connection and where significant evidence concerning the child is available, and discouraging continuing controversies over child custody. FL § 9-202; see also Tenn.Code Ann. § 36-6-202.
FL section 9-204 sets forth the grounds when Maryland courts may exercise jurisdiction. It provides, in pertinent part:
To continue reading
Request your trial
-
Conaway v. Deane
...rather than focusing on the "perceived harms" to the child of exposing it to a homosexual lifestyle); Gestl v. Frederick, 133 Md.App. 216, 244-45, 754 A.2d 1087, 1102-03 (2000) (determining that the trial court was required to exercise jurisdiction over a child visitation lawsuit brought by......
-
Apenyo v. Apenyo
...country divorce on the ground that it would manifestly be contrary to public policy”) (emphasis supplied); Gestl v. Frederick, 133 Md.App. 216, 229, 754 A.2d 1087 (2000) (“We will not disturb a trial court's decision whether or not to exercise jurisdiction unless the trial court abuses its ......
-
Burak v. Burak
...a natural parent and a third-party" than when the child had been in the sole physical custody of a third party. Gestl v. Frederick , 133 Md.App. 216, 238, 754 A.2d 1087 (2000).Even so, we find no abuse of discretion in the court's finding that exceptional circumstances exist here. Life with......
-
McDermott v. Dougherty
...was always a prerequisite in order to justify intervention in decisions concerning custody and visitation." Gestl v. Frederick, 133 Md.App. 216, 242, 754 A.2d 1087, 1101 (2000) (alteration added). In addition, Troxel observed that the trial court did not order non-parental visitation based ......
-
When Parental Rights and Children's Best Interests Collide: an Examination of Troxel v. Granville as it Relates to Gay and Lesbian Families
...1987 as many as ten million children were being raised in gay or lesbian families). [132]. See Castricone, supra note 23, at 45. [133]. 754 A.2d 1087, 1101 (Md. Ct. Spec. App. 2000). [134]. Id. ("[W]e do not read Troxel to be inconsistent with existing Maryland law allowing custody in a non......