FLINT FAMILY LAW DIVORCE ATTORNEY REVIEWS A RECENT MICHIGAN COURT OF APPEALS DECISION,UNPUBLISHED September 15, 2009
Terry Bankert a Flint Family Law Divorce Lawyer reviews several family Law Issues:
1. Custody; Jurisdiction of an interstate custody dispute; The Acknowledgment of Parentage Act (APA)(MCL 722.1001 et seq.); The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)(MCL 722.1101 et seq.); Nash v. Salter; In re Hatcher; Bowie v. Arder; MCL 722.1006; MCL 722.1010; Eldred v. Ziny; Fisher v. Belcher; MCL 722.1201; MCL 722.1102(h);
2.A "child-custody determination" (MCL 722.1102(c));
3.Whether the APA and the UCCJEA can be read together; White v. Harrison-White; Whether the UCCJEA should control because it was the more recently enacted and the more specific statute; In pari materia; In re Project Cost & Special Assessment Roll for Chappel Dam; MCL 722.1202(1)(a); Atchison v. Atchison;
4.Whether the child or a party had a "significant connection" to Michigan;
5.Whether applying the APA to unmarried fathers while applying the UCCJEA to married fathers violated the Equal Protection Clauses of the federal and state constitutions; Heidelberg Bldg., LLC v. Department of Treasury; In re AH; The applicable standard of review; American States Ins. Co. v. Department of Treasury; Crego v. Coleman; Strict scrutiny;
4.Whether the defendant-father was entitled to an award of costs and fees pursuant to the UCCJEA; MCL 722.1311(1); "Shall"; Walters v. Nadell
Court: Michigan Court of Appeals (Unpublished),Case Name: Foster v. Wolkowitz
e-Journal Number: 43754,Judge(s): Per Curiam - O'Connell, Talbot, and Stephens
No. 291825,Monroe Circuit Court Family Division,LC No. 08-002771-DP
Here the courts opinion held the APA and the UCCJEA can be read together and the Michigan court had continuing jurisdiction pursuant to the UCCJEA, the court affirmed the trial court's determination it had jurisdiction of this interstate custody dispute.
MOM RUNS TO MICHIGAN WHERE SHE ONLY VISITED, DOES MICHIGAN HAVE JUSISDICTION, YES!
“Jurisdiction deals with the power of a court to hear a class of cases or the authority of a
court to bind the parties.” Omne Financial, Inc v Shacks, Inc, 226 Mich App 397, 402; 573 NW2d 641 (1997).
OUT OF STATE DAD HAD FILED IN ILLIONOIS
The parties signed an acknowledgment of parentage affidavit pursuant to the APA shortly after their child's birth.
The parties signed an acknowledgment of parentage affidavit pursuant to the
Acknowledgment of Parentage Act soon after their daughter’s birth. MCL 722.1003(1)
provides, “If a child is born out of wedlock, a man is considered to be the natural father of that child if the man joins with the mother of the child and acknowledges that child as his child by completing a form that is an acknowledgment of parentage.” As a result, “[a]n acknowledgment signed under [the Acknowledgement of Parentage Act] establishes paternity, and the acknowledgment may be the basis for court ordered child support, custody, or parenting time without further adjudication under the paternity act . . . .” MCL 722.1004.
CHILD CUSTODY ACT
The Child Custody Act [MCL 722.21 et seq.] is the “exclusive means” of pursuing
child custody rights, whereas the Acknowledgment of Parentage Act merely
establishes paternity, establishes the rights of the child, and supplies a “basis for
court ordered child support, custody, or parenting time without further
adjudication under the [Paternity Act, MCL 722.711 et seq.] . . . .”
Under MCL 722.1006, the plaintiff-mother had initial legal custody of the child.
As to the defendant-father's rights, since he was a resident of Illinois, the UCCJEA applied.
In this case, however, defendant is a resident of Illinois, and the UCCJEA, rather than the
Child Custody Act, “prescribes the powers and duties of the court in a child-custody proceeding involving this state and a proceeding or party outside of this state . . . .” Fisher v Belcher, 269 Mich App 247, 260; 713 NW2d 6 (2005) (internal quotations omitted).
INTERSTATE DISPUTE
For an interstate custody dispute, MCL 722.1201 sets forth the basic jurisdictional requirement for making an initial custody determination. Nash, supra at 109. MCL 722.1201 provides:
(1) Except as otherwise provided in [MCL 722.1204], a court of this state has
jurisdiction to make an initial child-custody determination only in the following
situation:
(a)
This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child
within 6 months before the commencement of the proceeding and the
child is absent from this state but a parent or person acting as a parent
continues to live in this state.
(b)
A court of another state does not have jurisdiction under subdivision
(a), or a court of the home state of the child has declined to exercise
jurisdiction on the ground that this state is the more appropriate forum
under [MCL 722.1207 or MCL 722.1208], and the court finds both of the
following:
(i)
The child and the child’s parents, or the child and at least 1
parent or a person acting as a parent, have a significant connection
with this state other than mere physical presence.
(ii)
Substantial evidence is available in this state concerning the
child’s care, protection, training, and personal relationships.
The court concluded the APA and the UCCJEA could be read together as one law and thus, avoid a conflict. Under the APA, there was already an initial determination of custody by operation of Michigan law.
SIGNIFICANT CONNECTION
Giving this determination the same status as one made by a court, the issue became whether, where one party is out of state, a Michigan court can exercise continuing jurisdiction under the UCCJEA. Pursuant to MCL 722.1202(1)(a), this issue was "not dependent on whether Michigan is the home state, but whether the child or a party has a significant connection to Michigan."
DEFINITION OF SIGNIFICANT CONNECTION
While "significant connection" is not defined by the UCCJEA, the court in White concluded it "exists where one parent resides in the state, maintains a meaningful relationship with the child, and, in maintaining the relationship, exercises parenting time in the state."
BACKGROUND
The parties' child was born in Michigan and spent six and a half months here after her birth, until she moved to Illinois with her parents. Over the course of the year the child and plaintiff (who had legal custody) spent in Illinois, they routinely visited Michigan, where all plaintiff's family resides.
MOM VISITED FAMILY IN MICHIGAN
Thus, in this sense, plaintiff could be said to have "exercised parenting time" in Michigan. Further, the visits were often a week long, and on one occasion they stayed in Michigan a full month. When plaintiff initiated the custody proceedings, she had been back in Michigan for about five days. Thus, the court concluded she and the child still had a significant connection to Michigan and the trial court had jurisdiction to modify the initial custody determination existing by operation of Michigan law. The Michgian Court of Appeals Affirmed the local court decision.
Posted here
Terry Bankert
http://attorneybankert.com/
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3 comments:
This case is a travesty! Foster v Wolkowitz demonstrate the absurd lengths for which the courts will reach in damaging fathers' relationships with their children. A little known fact about this case is that when the mother originally filed, she asserted that there was no affidavit of parentage - in order to put the case outside the jurisdiction of the UCCJEA. Then, amazingly, the affidavit was used to avoid the application of the UCCJEA! The custody order in this case forced the father to travel 5 hours by car, from Chicago, to see his daughter in Monroe Michigan, even though the mother failed to even seek the court's permission to remove the child from Illinois - where the child, mother and father lived in the same home, and whe mother had a job, had a driver's license, received state-funded health care, and was considered a in-state student at an Illinois university she attended.
Further, in Foster v Wolkowitz, the mother made multiple accusations of abuse against the father, however, the judge in the mother's home town still awarded the father joint custody and unsupervised visitation.
The Michigan court violated its agreement with the Illinois court to hold a UCCJEA home state hearing. Pursuant to the UCCJEA, the Illinois and Michigan judges held a teleconference during which they agreed that Michigan would hold a UCCJEA evidentiary hearing to determine which of the two states had jurisdiction. Both courts issued orders to that effect. However, the trial court in Monroe, Michigan broke its promise to the Illinois court and, instead of holding the UCJEA home state hearing, took jurisdiction via another law, an action that was rebuked by the Michigan Court of Appeals.
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