It's time for another look at how the laws related to parentage, custody, relocation and parental abduction intersect. Consider a recent and typical case with these facts--often encountered by family lawyers helping young parents:
√ The parents were unmarried
√ The parents had signed an Affidavit of Parentage at the time of the child's birth. See Michigan's Affidavit of Parentage, DCH-0682 (Rev. 4-16) By authority of Act 305 of 1996 as amended here. Download Affidavit of Parentage.
√ When the child was about three, the parents' relationship came unglued, Father committed an act of domestic violence upon Mother. An Ex Parte Personal Protection Order issued upon her application.
√ Father removed himself to a county located on the other side of the Mackinac Bridge--a four hour drive on a good day. On a bad day (high winds, snow storm, etc.), the bridge can be closed to traffic.
√ Father returned to the community in which he'd lived with Mother to attend a hearing on the Personal Protection Order. Father represented to the judge that he had moved 4 hours away and what he did not intend to return to the house where Mother was living with their child, but that he'd like a "civil stand-by" while he removed his personal property from the house.
√ The judge accepted Father at his word and agreed to the civil stand-by. An Order was entered allowing for this and also ordering that at 11:00 PM that evening, after removal of Father's personal property, the PPO would be set aside.
What happened next: “The best laid schemes o' mice an' men / Gang aft a-gley.”
√ Father arrived with his relatives and some pickup trucks and hauled away Father's purely personal property.
√ Mother, a generous soul with a kind heart--a naive lassie--agreed that Father could care for the child while she worked from 6 PM to 2 AM since Father would be so far away after he returned to his parents' house. As a caution, she wrote out a note in which he promised that he would not take their child away. She took two photographs of the note with her cellular telephone (sadly, not sending one to any third party) and she hid the note. She took a shower, dressed and left for work.
√ Upon arriving at home a little after 2 AM, Mother found that Father had removed the child. He had also removed all of the child's clothing, most of the child's toys and food that the maternal grandmother had purchased for the child. The only things belonging to the child that remained were those too large to fit into the available vehicles.
√ Mother called local law enforcement. She was told "this is a civil matter. You will have to go to court to get your child back." (This is a standard answer by law enforcement--they are not called upon to make a legal decision regarding which of two parents is entitled to have the child in his or her "possession.")
√ Mother came to my office and this was resolved (eventually) with a UCCJEA Warrant to locate and to pick up the child.
Discussion: Michigan's Acknowledgment of Parentage law is found at MCL 722.1001 et seq. See in particular, section 1006, which states:
722.1006 Grant of initial custody.
After a mother and father sign an acknowledgment of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.
History: 1996, Act 305, Eff. June 1, 1997 ;-- Am. 2006, Act 105, Imd. Eff. Apr. 7, 2006
Why does the statute give initial custody to the mother? The intent is to preserve the status quo so that the child is not caught in the middle. Studies have found that abduction is harmful to children. [In this context, we are talking about abduction as "wrongful taking" or "wrongful retention" (i.e., keeping a child longer than is allowed by a custody and parenting time order).] The statute itself is the legal authority for custody to be with the mother until the father goes to court to get a parenting time or custody order.
Nevertheless, despite the fact that this law was modified ten years ago to provide for custodial rights to be with the mother so that there is no tug-of-war involving the child, many, if not most law enforcement agencies continue to refuse assistance to mothers of young children when a father has removed and has hidden the child.
In fact, Michigan's Attorney General was requested to render a written opinion on a case with facts identical to those above. His written opinion, OAG No 7191, was released on March 28, 2006, and the statute was modified in response to that opinion on April 7, 2006. The AG opinion may be read here. Download Atty General Op re AOP
Despite the existence of the statute, even now--ten years later--many young mothers still encounter resistance and refusal of law enforcement to help with recovery of a taken child. I can only conclude that all of those involved with family courts and with law enforcement should take a careful look at this issue and train officers to comply with the law. The tug of war over children--with the children caught in the middle--should end.