Maryland Family Law Maryland family law opinions and commentary
Baltimore family law lawyer Stephen J. Cullen represented a German national who appealed a Harford County family law magistrate’s decision awarding custody of her son to her ex-husband. ‘This was a very scared, vulnerable person who was presented with an order from another country, and I don’t think anyone in that circuit court considered whether she even spoke English,’ he says. (File photo)
A Maryland court cannot modify an out-of-state custody order if Maryland is not the child’s home state, even where the custodial parent has unilaterally removed the child from the country, the Court of Special Appeals has held.
The state’s intermediate appellate court found that a Harford County Circuit Court family law magistrate erred in granting a father custody of his son after the mother left the country with their son in violation of a custody order in place in Colorado, where the couple divorced.
Roman Pilkington II, a U.S. Army sergeant, asked the court to intervene more than 19 months after his ex-wife, Nicole, took her two children, one of which was the couple’s son, to Germany for a trip then decided unilaterally to stay and enroll them in school, according to the opinion, filed last month.
The children were visiting Roman Pilkington in Maryland, where he had relocated for work, in 2015 but he did not return them to his ex-wife’s native Germany at the end of the visit, instead petitioning a Maryland court to gain temporary custody and order the couple’s original custody arrangement be enforced. The agreement provided Nicole Pilkington with primary custody and granted Roman Pilkington weekend and overnight visitation.
Nicole Pilkington participated in initial proceedings through an attorney but when the expense and distance became too much the case “took on a life of its own,” said Stephen J. Cullen, principal at Miles & Stockbridge PC in Baltimore, which handled the appeal pro bono.
Ultimately, the magistrate found Maryland had jurisdiction and awarded Roman Pilkington custody of the child. His ex-wife appealed and he did not participate in the appeal, which was submitted on briefs.
Said Cullen of his client: “This was a very scared, vulnerable person who was presented with an order from another country, and I don’t think anyone in that circuit court considered whether she even spoke English.”
The record from the proceedings was lacking, according to Leah M. Hauser, Cullen’s co-counsel, and the court’s opinion was difficult to read because of the negative portrayal of Nicole Pilkington that her lawyers say was inaccurate.
“One thing that was unfair about this case, we felt, was the [trial] court goes on in quite a pejorative way about the mother in its opinion citing to the record but the mother never got a chance to be part of the record,” Cullen said.
Defining ‘home state’
The trial court magistrate made statements on the record that Roman Pilkington was “playing by the rules” in the proceedings by obeying court orders, including sending the child back to Germany while the issue was pending, but Nicole Pilkington was not. She did not return for the scheduled hearing and broke off contact with a court evaluator.
Cullen said he could not comment on his client’s reasons for keeping the children in Germany, citing privilege.
Maryland’s Uniform Child Custody Jurisdiction and Enforcement Act was adopted to deter abductions and other unilateral removals of children to more favorable jurisdictions and designates the child’s home state as the state where the child lived with a parent for six continuous months prior to the custody action, Court of Special Appeals Judge Andrea M. Leahy wrote.
The magistrate found Maryland was the child’s home state because he had lived there with Roman Pilkington for three months and prior to that lived for more than a year in Germany. But Leahy said the law treats foreign countries as states, making Germany the son’s home state.
The court listed possible avenues of relief for Roman Pilkington, who was pro se and did not file a brief, within the bounds of the statute “should [he] pursue his claim further upon remand.”
Originally unreported
The Court of Special Appeals originally filed an unreported opinion in the case but opted to report it two weeks later. Cullen had said one of the court’s findings about the law set precedent and wanted the opinion reported.
One of Roman Pilkington’s requests at trial was that Maryland recognize and enforce the Colorado order, which is permitted under the statute and on remand, the Court of Special Appeals instructed the trial court to limit itself to those powers.
The trial court can exercise this power even if the foreign judgement has not been registered in Maryland, according to Leahy, because the general enforcement provision of the custody law does not mention registration as a prerequisite while another section does.
No appellate court in Maryland has previously made this finding, according to Cullen.
“We got a very pithy and detailed 37-page opinion,” Cullen said. “The Court of Special Appeals paid a lot of attention to this issue and made some very crystal clear pronouncements about the statute.”
