The recent reported Court of Special Appeals decision Cabrera v. Mercado, filed on September 28, 2016, is a complicated custody case involving a married couple’s infant child, with allegations of domestic violence, flight by one of the parties, and custody actions initiated in two jurisdictions: one filed by the husband in the Circuit Court for Montgomery County, Maryland, and one filed by the wife in Puerto Rico, where she had “absconded” to use the term of the appellate court, with the child.
The child, known as A.M.C in the opinion, was the only child of Sugheil Cabrera and Nelson Mercado. A.M.C. was born in June, 2014, and four months later Cabrera sought a protective order against Mercado on behalf of herself and the child in the District Court of Maryland for Montgomery County. At the request of the parties, the final protective order hearing was continued, and during the interim, Mercado had unsupervised visitation with A.M. C. every other day without incident.
When Mercado and his counsel appeared for the final protective order hearing, Carbrera did not; however, she sent her counsel to the hearing, who dismissed the protective order without explanation. Shortly afterwards, Mercado learned that Cabrera had fled to Puerto Rico – with A.M.C. Cabrera filed a complaint for custody (in Puerto Rico) on the day that the Montgomery County Protective Order was dismissed at Cabrera’s request. Mercado promptly filed an action for divorce and custody in the Circuit Court for Montgomery County. And much legal maneuvering and confusion ensued.
The Montgomery County Court, exercising much patience, ultimately issued a custody order in favor of Mercado, as well as various other orders, from which appeals were taken by Cabrera on multiple grounds.
One takeaway from the Court of Special Appeals’ decision, especially for an attorney who has to grapple regularity with custody jurisdiction (Washington County borders both Pennsylvania and West Virginia, and Virginia is not far away, either), was its pronouncement with respect to what constitutes notice under the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), which is the law to which nearly all states prescribe as a method of determining which state has the authority to hear and determine a child custody case. Cabrera claimed that she was not properly given notice in advance of the Circuit Court’s issuance of a temporary emergency custody order. Although the issue was moot (because the emergency order gave way to a final custody order), the Court found it presented an unresolved issue of public concern.
Honing in on the language of §9.5-107 of the UCCJEA which states that an out-of-state defendant in a custody case must be given notice in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective, the Court concluded that in the context where the defendant had fled the jurisdiction and made herself unavailable, the plaintiff’s counsel’s efforts to reach her (including the transmission of e-mails and pleadings directly to her, to her Puerto Rico counsel, and her Maryland protective order counsel) were reasonably calculated to give actual notice, and there was no error in entering an emergency custody order in favor of Mercado, even though Cabrera had not been served.
Every case is different of course, and this decision could still be appealed to Maryland’s highest court, but at this time there at least has been some guidance to family law attorneys who are dealing with difficult interstate jurisdictional custody disputes.