Dekinderen v. Dekinderen, (Unpublished, #293443), 1/12/09
Domestic Relations ReviewPlaintiff father appealed the trial court’s decision granting the defendant mother’s motion to decline jurisdiction to address the plaintiff’s motion to modify custody. The father argued that Michigan had jurisdiction to make an initial custody determination in connection with the parties’ divorce because the child had not resided in any single state for six months or more and, therefore, did not establish residency in any other state sufficient to confer jurisdiction. Thus, plaintiff argues, because Michigan properly made the initial child custody determination, it would have continuing jurisdiction to modify that custody decision.
The Court of Appeals reversed and remanded the case concluding that Michigan did not have jurisdiction to make the initial custody determination during the parties’ divorce because Michigan was not the child’s “home state” at the time.
Plaintiff has been a Michigan resident consistently since the parties’ divorce in 2008. However, neither the defendant nor the child has ever resided in Michigan. In order for Michigan to have had jurisdiction to have made the initial child custody determination, it would need to have been the child’s “home state”. Alternatively, no other state could have been the child’s “home state” or the child’s “home state” must have declined to exercise its jurisdiction finding Michigan was a more convenient forum, that the parents or the child have significant contacts with Michigan or substantial evidence regarding this case existed in this state.
The Court of Appeals found that the plaintiff’s contention that Michigan had initial jurisdiction based on the fact that the child was not yet six months old at the time of the divorce was without merit because it ignored language in MCL 722.1102(g) which states “in the case of a child less than 6 months of age, the term (“home state”) means the state in which the child lived from birth with a parent or person acting as a parent”. While plaintiff alleged in his divorce complaint that the child resided in Michigan, that allegation was irrelevant. The Uniform Child Custody and Jurisdiction and Enforcement Act (UCCJEA) considers where the child “lived” and this child did not live in Michigan at the time of the parties’ divorce. The child apparently lived in North Carolina. Where a child “resided” has a different meaning than where the child “lived” and “lived” is the language contained in the UCCJEA. Thus, Michigan did not have “home state” status to make the initial custody determination in the parties’ divorce proceeding.
Apparently the trial court did not know that the child was living in North Carolina at the time of the divorce. In addition, the plaintiff claimed later that North Carolina refused to exercise jurisdiction over the parties’ divorce because neither plaintiff nor defendant established residency there. If that were true, then perhaps Michigan could have exercised jurisdiction to make the initial custody determination here under MCL 722.1201(b) or (c)—given that no other state could have been the child’s “home state” or the child’s “home state” had declined to exercise its jurisdiction finding Michigan is a more convenient forum or that the parents or the child have significant contacts with Michigan or substantial evidence regarding this case exists in this state.
Nevertheless, Michigan did make an initial custody determination in 2008 and the parties abided by its terms until June 3, 2009 when plaintiff filed his emergency petition for extended parenting time pending the hearing on his motion to change custody. Once an initial custody determination occurs, exclusive continuing jurisdiction generally remains with that decreeing court. However, here, the Court of Appeals determined that since Michigan was not the child’s “home state” in 2008 and facts where not provided to the trial court to establish an alternative basis for it to make an initial custody determination under MCL 722.1202(b), (c) or (d), the trial court could not exercise continuing jurisdiction to modify the child custody determination here.
To compound the errors, when defendant filed her motion asking the trial court to decline jurisdiction she never provided the court with an affidavit as required by MCL 722.1209(1) to establish where the child had lived during the previous five years. To properly decide the defendant mother’s motion, the trial court needed to determine whether the child had a “home state” elsewhere and whether another court or courts had jurisdiction. The statements made at the trial court level suggested the child had lived in North Carolina, Virginia and California. Thus, it was conceivable the child had no “home state”. Furthermore, the father claimed the child had been abused by the mother and no inquiry was made as to whether any court had assumed jurisdiction over the case given the allegations of abuse. The Court of Appeals also noted with dismay that the trial court did not exercise jurisdiction under MCL 722.1204(1) if, as it appeared, the child was in Michigan at the time the Friend of the Court was conducting its investigation with respect to the plaintiff’s pending motion and the mother apparently abused (admitted biting) the child.
Thus, the trial court’s decision to deny jurisdiction was reversed and the case was remanded for the trial court to determine whether it could properly exercise continuing jurisdiction in light of no other state having jurisdiction over the child or other states which might have had jurisdiction had declined to exercise it.
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