UPDATES IN MICHIGAN FAMILY LAW

Prevention of Parental Abduction | Recognizing the Red Flags

Families are under so much stress in today's society--financial and relationship stress--that parental abduction of the children may become an issue in any given family. I have often been contacted in the past year by a parent who says his/her spouse has taken the children and moved to another state. I advise them of their rights under the UCCJEA, and of the importance of protecting home state jurisdiction by seeking return of the children to their home state before six months have elapsed, after which the new state may become the "home state" of the children where a custody battle would have to be waged. [A later post will discuss the concept of "extended home state jurisdiction."]

Abduction prevention and recovery of abducted children has become a major part of my practice. Because the effects of abduction on children can be very serious [See Part I of this series], it is important for parents to put preventative measures in place. The purpose of today's post is to provide parents with information to help them assess whether they should be concerned about parental abduction. 

Acknowledgment of Parentage is not an "initial custody determination" | UCCJEA

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.

Can a father file a pre-birth custody action?

A question was raised today about how a putative father might protect his parental rights to an unborn child when the mother moves to another state prior to birth in an effort to thwart the father's attempts to assert his rights. As I've earlier written, in Michigan the best way a putative father can protect against a mother giving a child up for adoption without his knowledge or consent is to file an intent to claim paternity. [See "How can a man protect his paternity rights if the mother wants to place the child for adoption?"] However, in the absence of a national putative father registry, this is not much of a safeguard.

The issue raised was whether a putative father can file a pre-birth complaint for custody in the state where the child was conceived. Michigan and some other states allow pre-birth paternity suits, but other states do not allow them. Interestingly, there are some state appellate courts that have addressed pre-birth custody suits. The issue is: Does the father have jurisdiction under the UCCJEA to file such a suit? Here is how some states have addressed this issue:

I.R.S. withholds info that could help find kidnapped children

Imagine having your children kidnapped by their other parent. Imagine them missing for years. And then imagine finding a tiny bit of information that could lead to their recovery. You file a tax return, claiming the child as a dependent--and the I.R.S. disallows the exemption because someone else has claimed them as a dependent. Shouldn't the I.R.S. have to cough up information to help you find your children? The address where the refund was mailed? The contact information for the employer withholding wages? Well, as it turns out--"No"--says the I.R.S.. Why? Law protects the privacy rights of the other parent.

Registering a "foreign" custody order for modification purposes

I am often asked whether a parent can modify a custody or parenting time order that has been made by a court in a state other than Michigan. As with most family law matters, the answer is "It depends upon the unique facts of your case."

The Uniform Child Custody Jurisdiction and Enforcement Act ["UCCJEA"] is a jurisdictional, procedural statute. Its purpose is to determine jurisdiction to make an initial child custody determination, to preserve exclusive continuing jurisdiction with respect to that custody determination, to determine whether a state has modification jurisdiction, and to provide for enforcement of custody orders.

Court holds that hiding of abducted child is parental neglect

You may recall that in early September 2009 I wrote about the recovery of a child who had been abducted by his mother after the father was awarded custody by the trial court. Immediately after that court decision, the mother took the child and, with her mother’s help, hid him for nearly two years. The earlier post and details of the case are found here on the post “Parental Kidnapping | Effective response”. http://tinyurl.com/yjth6j7

An Illinois court has now decided that the mother’s hiding of her son for nearly two years in his grandmother's home, often in a crawl space behind a wall (in a space that was roughly 5 feet by 12 feet and about the height of a washing machine), amounted to neglect. The judge’s ruling, according to an AP report, was based partly on her agreement with a counselor's belief that the seclusion left the boy, now 7, with post-traumatic stress disorder. The judge’s ruling clears the way for a possible decision at a Jan. 8 hearing on custody or visitation arrangements for the boy, who now is in the temporary custody of a relative. The father, Michael Chekevdia, 48, is seeking custody.’
You may read the entire AP report here. http://tinyurl.com/yjv28kh

What are the risks of parental kidnapping & how can you prevent it?

Given Michigan’s disastrous economy, families are increasingly mobile. The prospects of a parent removing children from Michigan in violation of a court order or in the absence of a court order have increased as a result. Parental kidnapping is a felony punishable by 1 year and 1 day in prison. However, because of the potential harm to children, it is important to focus on prevention.

On June 14, 2007, legislation was initiated in Michigan that would help parents seek court intervention to prevent parental kidnappings. House Bill No. 4925  [Last accessed on November 22, 2008]. The Model Act is called the Uniform Child Abduction Prevention Act. Unfortunately, that legislation has languished in Committee ever since.

Family law experts around the country have actively supported this uniform law. The question for Michigan parents and family lawyers is this: How can this Model Act help prevent and/or resolve parental abductions?

When does a state have exclusive, continuing jurisdiction?

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.