I have fallen behind in writing digests of recent Michigan cases. One important case recently decided is Foster v Wolkowitz. The Michigan Supreme Court’s Opinion was published on July 1, 2010. The Court held that the presumptive award of custody arising from execution of an acknowledgment of parentage does not constitute an “initial custody determination” under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL § 722.1101 et seq. As a result, it doesn't confer subject matter jurisdiction upon the state court where another state is the child's home state under the UCCJEA.
Under Michigan's Acknowledgment of Parentage Act, MCL § 722.1101 et seq., once two parents sign the Acknowledgment of Parentage [“AOP“] the mother is presumptively awarded custody of the child, without prejudice to the father's rights to seek custody and parenting time. An AOP is a valid agreement into which parents may enter. An AOP may be set aside only when a custody determination has been made by the judiciary.
Michigan’s supreme court held that the presumptive award of custody was not a court order and cannot be an initial custody determination under the UCCJEA. As a direct consequence in this case, because the UCCJEA gives priority to the child’s home state to make the initial custody determination, (here, Illinois ), the Michigan courts were without power to act unless and until the Illinois courts declined jurisdiction.
Facts: The parties cohabitated but never married. They moved from Illinois to Michigan in early 2007, prior to the birth of their child in Michigan. They executed an AOP in Michigan. By its express terms, the AOP granted custody to the mother, named the defendant as the child’s father, and established paternity. Several months later the mother returned to Illinois, taking the child with her. The following year, the parents’ relationship ended.
The mother filed a paternity action in Michigan. Shortly thereafter, the father filed a custody action in Illinois. The parties disputed which state had jurisdiction to determine issues of custody. The Michigan trial court found because both parents had consented to jurisdiction in Michigan by executing the AOP the AOP served as a voluntary grant of “initial custody” to the mother under the Acknowledgment of Parentage Act. Reasoning that an “initial custody determination” existed in the AOP, the court held it was vested with jurisdiction, and that the issue of primacy of home state jurisdiction need not be addressed.
The Court of Appeals affirmed, albeit for different reasons. The COA held that the properly executed AOP, as a matter of law, operated as an “initial custody determination” under the UCCJEA. According to the COA, Michigan had continuing jurisdiction under the UCCJEA from the moment the AOP was executed. As a result, the Court of Appeals found it “not necessary to consider defendant’s argument that Illinois is the home state.”
Reversal by the Michigan Supreme Court: The supreme court held that a child custody determination in an AOP is not a custody determination within the meaning of the UCCJEA. Note that Michigan’s Acknowledgment of Parentage statute clearly states that an agreed grant of initial custody is without prejudice to a separate determination of either parent’s custodial rights, leaving either parent able to seek a court order. In addition, a “child-custody determination[s]” must take the form of court orders under the UCCJEA. MCL § 722.1102(c). All that the AOP represents is an agreement between mother and father.
Recall that parties may never confer subject matter jurisdiction in UCCJEA matters upon any court. As a result, even though the parents may have individually consented to personal jurisdiction in Michigan when executing their AOP, that agreement was insufficient to confer subject matter UCCJEA jurisdiction in the Michigan courts.
The Michigan Supreme Court noted the AOP’s stipulations with respect to the mother’s custody would remain intact pending the outcome of the judicial interstate custody dispute. Thus, the question of jurisdiction must await a decision by the Illionois Court to decide whether to decline jurisdiction before the Michigan courts may act.
Read Foster v Wolkowitz here.
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