Meredith, Leahy, Beachley, JJ.
Pilkington (Appellant) challenges the Circuit Court for
Harford County's jurisdiction to issue the underlying
order awarding sole legal and primary physical custody of her
child R.P., to her former husband, Roman Pilkington, II
(Appellee). Ms. Pilkington is a citizen and current resident
of Germany. Mr. Pilkington is a Sergeant in the United States
Army, and the transience of his residences in that service
underlies the issues at the crux of this case.
parties met in 2003 in Germany where they got married and
became the parents of R.P. During the time the married couple
lived in Germany, Ms. Pilkington also gave birth to B.P.,
who, it was later determined, was not the biological child of
Mr. Pilkington. The parties moved to Colorado, where they
divorced two years later and entered into a court-ordered
custody plan for R.P., awarding Ms. Pilkington primary
physical custody.After another three years, Mr. Pilkington
moved to Maryland, where he currently resides.
2014, Ms. Pilkington took B.P. and R.P. to Germany for a
month-long vacation, and then decided unilaterally to stay in
Germany and enroll both children in school there, in
violation of the Colorado court's custody order for R.P.
Nineteen months later, when Ms. Pilkington allowed R.P. and
his sister to visit his father in Maryland, Mr. Pilkington
sought judicial intervention. He filed two emergency custody
petitions in the Circuit Court for Harford County for R.P.
emergency custody hearing, Ms. Pilkington appeared through
counsel and challenged the court's jurisdiction under the
Maryland Uniform Child Custody Jurisdiction and Enforcement
Act ("Maryland UCCJEA" or "Act"),
Maryland Code (1984, 2012 Repl. Vol.), Family Law
("FL") § 9.5-101 et seq. The court
decided it could exercise jurisdiction under the Act, but
ordered Mr. Pilkington to return the children to Germany
until the court could conduct a full trial. Once the children
were back in Germany, Ms. Pilkington broke off all
communications and did not participate in any further court
proceedings preceding this appeal. In response, the circuit
court determined that Ms. Pilkington's behavior was
inconsistent with R.P.'s best interest and awarded sole
legal and primary custody of R.P. to Mr. Pilkington.
Pilkington presents the following issues:
1) "Whether the lower court erred when it modified
custody without subject matter jurisdiction."
2) "Whether the lower court erred and violated the
Mother's due process rights and fundamental liberty
interest in the care, custody and control of her son in
violation of the United States Constitution, the Maryland
Declaration of Rights and Maryland statutory and case
authority when it failed to provide the Mother notice and an
opportunity to be heard."
3) "Whether the lower court erred and violated the
Mother's due process rights and fundamental liberty
interest in the care, custody and control of her son when it
exceeded the authority afforded it by the Maryland
4) "Whether the lower court abused its discretion when
it modified and changed custody without holding a hearing and
without any factual findings."
that the 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. We, therefore, must vacate the circuit
court's order and remand the case with instructions that
the court limit itself to the authority contained in the
Maryland UCCJEA's enforcement subtitle.
The Marriage and Divorce
Pilkington met Ms. Pilkington, a German national, while he
was stationed with the United States Army in Schweinfurt,
Germany. On May 23, 2003, the couple married in Niederwerrn,
Bavaria, Germany, where they lived until December 2008 when
the Army transferred Mr. Pilkington to Colorado Springs,
Colorado. During their marriage and while the couple still
resided in Germany, Ms. Pilkington gave birth to two
children: B.P., born in 2004, and R.P., born in 2006. The
couple remained married until October 28, 2010, at which
point they obtained a Decree of Dissolution of Marriage
("Colorado Order") in the District Court for El
Paso County, Colorado. A paternity test at the time of the
parents' divorce proved that Mr. Pilkington is not
B.P.'s biological father, although her birth certificate
identifies him as the father. R.P. is Mr. Pilkington's
Colorado Order incorporated a parenting plan for R.P., which
set child support, provided Ms. Pilkington with primary
physical custody of R.P., and granted Mr. Pilkington weekend
visitation during the school year and a total of 170
overnights per year. The Colorado Order also required that
either parent wishing to relocate the child must "file a
Motion with the Court . . . and obtain court permission to
relocate, unless the parties have submitted to the Court a
Custody, Visitation & the Underlying Dispute
the Pilkingtons lived separately in Colorado for almost three
years, the Army transferred Mr. Pilkington from Colorado
Springs to Aberdeen Proving Ground, Maryland, in October of
2013. The children remained in Colorado with Ms. Pilkington
from October until their school's Christmas break, at
which point they traveled to Maryland to spend the holiday
with Mr. Pilkington. Then, at Ms. Pilkington's request,
Mr. Pilkington provided Ms. Pilkington with written
permission allowing her to take the children to visit her
family in Germany from January 25, 2014 to February 20,
2014. Once in Germany, Ms. Pilkington decided
unilaterally to remain there with the children and enroll
them in a German primary school. She did not ask Mr.
Pilkington for a joint stipulation to amend the parental
plan, nor did she seek the Colorado court's permission to
relocate the children pursuant to the Colorado Order. That
summer, Mr. Pilkington travelled to Germany to visit the
children. He returned to Maryland two weeks later without
having sought a court order to enforce his custody rights.
passed before Mr. Pilkington would see the children again. At
no point in the meantime did Mr. Pilkington file a motion in
any court for the children's return. The following
summer, with Ms. Pilkington's permission, Mr. Pilkington
flew to Germany to pick up the children to bring them to
Maryland from June 29, 2015, until September 11, 2015, at
which point they were to return to Germany. When the time
came for the children to return to Germany, Mr. Pilkington
took the children only as far as Philadelphia International
Airport. Once at the airport, Mr. Pilkington claims the
children were upset to leave him so he took them back to
Maryland where he enrolled them in school.
The Emergency Custody Hearing
days after the children were supposed to fly back to Germany,
Mr. Pilkington, through counsel, sent Ms. Pilkington notice
electronically, advising her that he would be filing an
"Ex Parte Petition for Emergency Custody in the Circuit
Court for Harford County on September 24th, 2015 at 8:30
a.m." Two days later, Mr. Pilkington again sent Ms.
Pilkington and her Maryland counsel notice of the action and
certification of service-this time by both email and regular
mail. Then, on September 24, 2015, Mr. Pilkington filed his
petition for temporary custody of R.P. and a corresponding
affidavit in compliance with the requirements for a petition
to enforce child custody determination. Mr. Pilkington
brought his petitions pursuant to FL §§ 9.5-204 and
9.5-304, as well as § 9.5-303, and filed his affidavit
of compliance pursuant to § 9.5-308 of the same title.
Pilkington's complaint alleged that Ms. Pilkington kept
the children in Germany in disregard of the Colorado Order,
depriving Mr. Pilkington of his rights therein. Mr.
Pilkington asked the court "to issue a temporary order
enforcing the visitation schedule made by the Colorado court
until such time that the foreign judgment can be registered
in Maryland, and order that [he] be awarded primary physical
custody of [R.P.] on a pendente lite basis."
Mr. Pilkington only sought custody pendente lite
because, he reasoned, that if granted, "Maryland [would]
become the 'home state' of [the children] in December
same day, the circuit court held an emergency custody
hearing. As an initial matter at the hearing, Ms. Pilkington
appeared through counsel and questioned the court's
subject matter jurisdiction to hear the case under the
Maryland UCCJEA. The court observed: "If [the children]
had gone from Colorado to Maryland, I would agree one hundred
percent that you are in the wrong court. Since they had that
year span or year plus over in Germany, then under the
[Maryland UCCJEA] there really isn't any state in this
country that has clear, pure six month jurisdiction."
Mr. Pilkington's counsel acknowledged the home state
issue, noting: "Due to the home state issue of six
months, I was going to file that in December when that time
comes." Ultimately the court found that it had
Under the [Maryland UCCJEA] -- once again, if we didn't
have that little intercession in Germany for over a year,
clearly we wouldn't [have jurisdiction] and I would tell
you all to pack your bags and go see beautiful Colorado. . .
. But we do have that. So, if you look at what state in the
union has any [jurisdiction], there is really no longer one
that is clear. We look at the contacts with this state and at
this point in time you still have two states fighting for it,
one is Colorado under a continuing jurisdiction aspect and it
is their Order, et cetera, but nobody has been there for over
a year. Nobody has been here for long. The end of June and
three months is all we have. So, it isn't terrific
contact, but it certainly seems to beat anybody else in the
USA. So, I'm not concerned on a jurisdictional aspect.
hearing proffers from each parties' counsel but no
testimony, the court ordered Mr. Pilkington to surrender both
children's passports and ordered that, pending trial, the
children should return to their mother in Germany, with R.P.
to return to Maryland for his entire Christmas vacation at
Ms. Pilkington's expense. At Mr. Pilkington's
request, the court agreed to include in its order a
requirement that Ms. Pilkington return the children for
trial, and if not, the court would "have the trial
without her." The court's orders, however, do not
explicitly include this mandate.
Office of the Family Law Case Coordinator for the circuit
court mailed the parties' respective counsel copies of
the Order for Referral on October 14, 2015, ordering the
Office of Family Court Services:
1) To evaluate each party's ability to meet the
2) To evaluate each party's ability to make decisions
which prioritize the needs of the child(ren);
3) To evaluate each party's ability to co-parent;
4) To evaluate each party's attitude toward the
child(ren)'s relationship with the other party;
5) To evaluate the child(ren)'s adjustment to the current
6) To evaluate the child(ren)'s past and present
relationship with each party;
7) To help the parties implement and develop a visitation
schedule and to reduce the dates and times to writing;
8) Should there be a decrease or increase in visitation;
9) Should there be a change in custody if a parent moves out
of the state.
10) To update the prior evaluation.
referral order also directed that:
[T]he Evaluator shall spend a maximum of four sessions in the
evaluation of the parties and the child or children, and that
the parties to this proceeding shall cooperate with the
Evaluator in the scheduling of appointments, and if in the
judgment of the Evaluator either party shall fail to
cooperate in the scheduling of appointments, then the
Evaluator shall notify the Court of this fact; and
[T]hat the Evaluator shall have the right to terminate th[e]
referral if the Evaluator deems the referral inappropriate or
the parties fail to cooperate. Such termination shall be made
by sending written notice of that fact to the Court[.]
hearing was scheduled for December 29, 2015, and the
Evaluator along with the parties and their respective
attorneys were directed to appear.
The Second Custody Hearing
October 19, 2015, Mr. Pilkington mailed Ms. Pilkington two
Writs of Summons, seeking a written response to his
complaints filed in the Ex Parte Emergency Petition for
Custody and Third Party Complaint for Custody. The court held
a hearing with the evaluator on December 29, 2015. Ms.
Pilkington did not attend the hearing and the evaluator
testified that Ms. Pilkington "had no contact via
e-mail, letter or phone with this evaluator since October the
16th of 2015[, ]" despite "[n]umerous attempts . .
. with no response." She also failed to return R.P. to
his father for Christmas vacation, contrary to the
court's September 24, 2015 order.
the evaluator entered her report at the December 29, 2015
hearing, Mr. Pilkington's counsel asked the court:
[E]ither by way of enrolling the Colorado Court Order or this
Court issuing its own Order that we get a Custody Order in
place in Maryland. At that point I think [Mr. Pilkington]
could take that to law enforcement and file charges against
her and then proceed to go to Germany with the aid of law
enforcement and show her the Court Order and hopefully bring
back the kid.
In the interim, because there is no Court Order in Maryland
in place right now, I would ask at the very least that the
Court issue a Show Cause Order so that can be served on her
prior to or in advance of the Pretrial Conference, because we
have a Pretrial Conference February the 14th so
that I can serve her with that and then if she is not going
to cooperate at that point issue a Body Attachment.
All right. I'm inclined to simply make a recommendation
that [Mr. Pilkington] be granted custody of the child. I
mean, he is playing by the rules and [Ms. Pilkington's]
not. I don't see any reason why we want to keep putting
rules or making an Order for her that she is not going to
* * *
. . . I'm a Magistrate, I'm not a Judge, but I'm
going to make a recommendation. And it probably won't be
signed [by the circuit court] until you get to that Pretrial
[February 14, 2016] because I expect [Ms. Pilkington] will
take Exceptions, but at least then a judge has got some idea
what I think should be done and maybe if they agree with me
they will continue it. If they don't, they will fashion
some other remedy.
But it is clear to mean -- I mean, to me in the list of
factors as to what makes a good custodial parent, the biggest
one is which parent will best facilitate a relationship with
the other parent. It is clear to me that [Ms. Pilkington] is
not willing to do that in any shape. [Mr.] Pilkington on the
other hand has played by the rules and he is willing to try
to keep some kind of relationship going. He has been duped
twice I would say and the Court has been duped once that if
the kids get to Germany she will let him come back. She's
not gonna [let R.P. come back] without some intervention. So,
that is what I'm going to recommend.
next day, December 30, 2015, the presiding magistrate issued
his report and recommendation, recommending that "[Mr.
Pilkington] be granted Sole Legal and Primary Physical
Custody of [R.P.]" The magistrate's report offered
the following analysis:
At this time it seems very clear that [Ms. Pilkington] has no
intention of honoring any Maryland Court Order regarding
Custody. It is her apparent intention to completely isolate
[Mr. Pilkington] from [R.P.] This Magistrate considers [Ms.
Pilkington's] action in this matter to be extremely
detrimental to the father-son relationship between [Mr.
Pilkington] and [R.P.] [Ms. Pilkington's] actions are
definitely not in the Minor Child's best interest.
In this case [Mr. Pilkington] has played by the rules and
[Ms. Pilkington] has completely ignored them. The Magistrate
believes that [Mr. Pilkington] will continue to facilitate a
relationship between [R.P.] and [Ms. Pilkington] if [R.P.] is
in his Custody. It is obvious that the reverse of this belief
is not true.
Based on the above the Magistrate finds that it is in
[R.P.]'s best interest that [Mr. Pilkington] be granted
his Sole Legal and Primary Physical Custody. Visitation
between [R.P.] and [Ms. Pilkington] should be worked out
after [Ms. Pilkington] agrees to participate in these Court
notice accompanying the report and recommendation explained
the procedures for filing exceptions to the magistrate's
recommendation and warned the parties that "[a]ny matter
not specifically set forth in [an] exception is waived
unless the Court finds that justice requires otherwise[,
]" and that "[t]he Court may dismiss the exceptions
of a party who has not complied with [Maryland Rule
9-208]." The court mailed both its report and
recommendation and the corresponding notice to both parties.
Mr. Pilkington's counsel also mailed Ms. Pilkington a
copy by restricted delivery.
Pilkington did not respond or file any exceptions. On January
12, 2016, the Circuit Court for Harford County adopted the
Magistrate's recommendation, issuing an order that stated
simply: "Ordered that [Mr. Pilkington] be granted Sole
Legal and Primary Physical Custody of [R.P.]" Ms.
Pilkington noted her timely appeal.