In today's mobile society where parents and children move from one state to another after a divorce or custody action, the question often arises whether the state that made the initial child custody determination continues to have exclusive, continuing jurisdiction over modifications of custody orders. The Michigan Court of Appeal ("COA") recently answered this question, relying on decisions from Oregon and California for assistance.
In White v Harrison-White, 280 Mich. App. 383, 760 N.W.2d 691 (2008), the COA was faced with a case where the parents had originally lived in Ontario. The father initially moved to Michigan, commuting to Ontario on weekends. Later, the mother and child followed, and they lived in Michigan for a few years. When the marriage deteriorated, the mother and child moved back to Ontario.Dad filed for divorce about a month later.
The divorce and custody action proceeded in Michigan, which was, of course, the child's Home State under the Uniform Child Custody Jurisdiction and Enforcement Act. ["UCCJEA"] A parenting-time schedule was set forth in a custody order that allowed the father parenting time on alternate weekends, with one per month to be exercised in Michigan and one to be exercised in Ontario. As the child got older, Dad received increased parenting time in Michigan, including several weekends per month, several long holiday periods, and three consecutive weeks in the summer.
After the trial court awarded Dad the more extended parenting time and makeup parenting time for time that had been denied, Mom filed a motion asking the court to hold that it no longer had exclusive, continuing jurisdiction to modify the custody order. She claimed that the trial court no longer had jurisdiction under "MCL 722.1202(1)(a) and 722.1203" because "neither the child nor his parents have a significant connection with the State of Michigan and substantial evidence is no longer available in the state concerning the child's care, protection, training and personal relationships . . . ." The trial court granted the motion and Dad filed an application for leave to appeal, which was granted.
After looking at decisions from Oregon and California, the Michigan COA held that, in fact, the Michigan trial court continued to have exclusive, continuing jurisdiction because the father still lived in Michigan and the child spent significant parenting time in Michigan with his father. The result turned on the definition of the term "significant connection."
The COA refused Mom's request to give the term the narrow interpretation found in an Oregon case and, instead, looked to a California case, Grahm v Superior Court, 132 Cal App 4th 1193, 1196; 34 Cal Rptr 3d 270 (2005). The COA stated:
"Additionally, the Grahm court reasoned that its interpretation of "significant connection" comports with the intended application of the UCCJEA, that "`[s]o long as one parent, or person acting as a parent, remains in the state that made the original custody determination, only that state can determine when the relationship between the child and the left-behind parent has deteriorated sufficiently so that jurisdiction is lost." Grahm, supra at 1198, quoting Spector, Uniform Child-Custody Jurisdiction and Enforcement Act (with Prefatory Note and Comments), 32 Fam LQ 301, 340 n 81 (1998) (italics added in Grahm); see also UCCJEA, § 202 comment 1 ("If the relationship between the child and the person remaining in the State with exclusive, continuing jurisdiction becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist.")."
Because every child custody case has its own unique set of facts, it's important to attempt to distinguish your pending case with those like the White case and the cases that the COA cited in the White opinion.
In addition, as a practice pointer, consider whether there is a factual basis to support an argument that the state having jurisdiction is an inconvenient forum. This would allow that court to decline to exercise its exclusive and continuing jurisdiction. Section 207 of the UCCJEA allows a court to decline to exercise jurisdiction where a party can demonstrate the inconvenience of the forum. Various factors must be considered by the court:
Sec. 207. (1) A court of this state that has jurisdiction under this act to make a child-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum
may be raised upon the motion of a party, the court's own motion, or the request of another court.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including all of the following:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
(b) The length of time the child has resided outside this state.
(c) The distance between the court in this state and the court in the state that would assume jurisdiction.
(d) The parties' relative financial circumstances.
(e) An agreement by the parties as to which state should assume jurisdiction.
(f) The nature and location of the evidence required to resolve the pending litigation, including the child's testimony.
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
(h) The familiarity of the court of each state with the facts and issues of the pending litigation.
(3) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child-custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(4) A court of this state may decline to exercise jurisdiction under this act if a child-custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
The mother in White had not raised the issue of inconvenient forum in the trial court or on appeal, and the COA refused to consider that argument.
You may read the COA opinion here: Download White_v._Harrison-White