Maryland Child Custody Jurisdiction Visitation Same-sex Relation Lawyers Attorneys
DONNA GESTL v. LISA M. FREDERICK, ET AL.
COURT OF SPECIAL APPEALS OF MARYLAND
FACTS:
After appellee moved with her child to Tennessee, appellant, who had lived with appellee in Maryland in a same-sex relationship, sought custody of, or visitation with, the child. Relying upon the Maryland Uniform Child Custody Jurisdiction Act, Md. Code Ann., Fam. Law 9-201 et seq., appellee moved to dismiss the action. The trial court granted appellee's motion and appellant sought appellate review.
ISSUES:
The following are the issues to be decided:
Whether the trial court erred in declining jurisdiction because Maryland was an inconvenient forum.
Whether the trial court erred in dismissing the case rather than staying the proceedings.
DISCUSSION:
Generally, pursuant to the Maryland Uniform Child Custody Jurisdiction Act, Md. Code Ann., Fam. Law 9-201 et seq., a "home state" should be the jurisdiction to hear and decide custody disputes. If, however, there is no home state or the child and his family have equal or stronger ties with another state, a court in that state has jurisdiction. Factors a trial court should consider in determining whether it is an inconvenient forum to here a child custody dispute include: (1) if another state is or recently was the child's home state; (2) if another state has a closer connection with the child and the child's family or with the child and 1 or more of the contestants; (3) if substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state; (4) if the parties have agreed on another forum that is no less appropriate; and (5) if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in Md. Code Ann., Fam. Law 9-202. Md. Code Ann., Fam. Law 9-207(c).If a trial court finds that it is an inconvenient forum to hear a child custody case, it may stay the proceedings on condition that a custody proceeding be promptly commenced in another named state or on any other conditions which may be just and proper. Md. Code Ann., Fam. Law 9-207(e). A Maryland court should not dismiss an action under the doctrine of forum non conveniens when an alternative forum is not available. During the time period between the circuit court's dismissal of the instant case and this appeal, the intermediate appellate court in Tennessee has held that a non-biological "parent" in a domestic relationship was not entitled to custody or visitation of a child. appellant is afforded rights under Maryland law that are not guaranteed in Tennessee because under Tennessee law, a third party may only gain custody if there is a finding that parental custody would result in substantial harm to the child. The Tennessee courts will not "engage in a general 'best interest of the child' evaluation unless there has been a finding . . . of substantial harm to the child." Maryland, however, recognizes a third party's right to custody over a natural parent if exceptional circumstances exist which make it in the best interests of the child to award custody to the third party. The Maryland standard creates a substantial category of cases where a third party could obtain custody not permitted under Tennessee law. Under Tennessee law, appellant, as a non-biological parent claiming to be a de facto parent, would have no standing to bring her claim. We hold, therefore, that Tennessee does not provide an available alternative forum for appellant to bring her claim, and accordingly, the trial court erred in dismissing the case without considering appellant's claim.
JUDGMENT:
Forum non conveniens dismissal reversed. Because appellant had standing to assert her claims under Maryland law but not under Tennessee law, Tennessee did not provide an alternative forum for litigating the parties' dispute.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
Maryland Child Custody Jurisdiction Visitation Same-sex Relation Lawyers Attorneys
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