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.

Primarily, it was enacted to eliminate inconsistent decisions among States regarding custody issues prevalent under the prior law, the Uniform Child Custody Jurisdiction Act ["UCCJA"]. Another primary purpose is to discourage self-help, parental abduction of children and forum-shopping. The "best interests of the child," available under the UCCJA, does not apply. This prevents courts from looking into allegations of "best interests" and from refusing to return children to the state having jurisdiction. The Act makes clear that temporary emergency jurisdiction is available to protect children, but that the taking parent has to litigate the alleged emergency in the court having jurisdiction.

The UCCJEA has now been enacted by all 50 states. When I use the term "foreign order," I mean an order entered by any state or even by a foreign country. Under the UCCJEA, a Michigan Court must treat a foreign country as a state for the purposes of applying Articles 1 and 2 (dealing with obtaining and modifying custody orders) and also for the purposes of applying Article 3 for enforcement purposes.

MCL 722.1304 is the Michigan statute that sets forth the requirements for registering a child-custody determination made in another state. A parent must provide the following:

(a) A letter or other document requesting registration.

(b) Two copies, including 1 certified copy, of the child-custody determination sought to be registered, and a statement under penalty of perjury that, to the best of the knowledge and belief of the person seeking registration, the child-custody determination has not been modified.

(c) Unless a party submits a sworn statement that parent or child would be at risk of harm if identifying information is disclosed, the party must provide the name and address of the person seeking registration and of each parent or person acting as a parent who has been awarded custody or parenting time in the child-custody determination sought to be registered.

There are only a few objections to registration that can be made, those objections must be made within 21 days of service of the registration upon the other parent, and the other parent must request a hearing on the objections. At that hearing, the court shall confirm the registered child-custody determination unless the person contesting registration establishes 1 of the following:

(a) The issuing court did not have jurisdiction under article 2 to make the child custody determination.
(b) The child-custody determination sought to be registered has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under article 2.
(c) The person contesting registration was entitled to notice in the proceedings before the court that issued the child-custody determination for which registration is sought, but notice of those proceedings was not given in accordance with the standards of section 108.

But mere registration doesn't mean that an out-of-state child-custody determination may be modified by a Michigan Court. Modification will depend upon whether the state issuing the order retains exclusive continuing jurisdiction. Michigan can only modify if the following is true:

Michigan has jurisdiction to make an initial child-custody determination, meaning that Michigan must be the child's "Home State" for at least 6 months prior to filing of the petition to modify and

(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 202 or that a court of this state would be a more convenient forum under section 207 OR
(b) A court of this state or a court of the other state determines that neither the child, nor a parent of the child, nor a person acting as a parent presently resides in the other state.

Thus, if one parent still lives in the state where the custody order was entered, that state has to relinquish jurisdiction in order for a Michigan Court to act. But if either the issuing court or the Michigan court determines that no child and no parent of the child presently resides in the issuing state, then Michigan can take jurisdiction to modify.

Even if the party opposing modification moved back to the issuing state in order to try to reclaim exclusive continuing jurisdiction, that would not work.  The UCCJEA does not allow for the revival of the residency after a state loses jurisdiction. "Exclusive, continuing jurisdiction is not reestablished if, after the child, the parents and all persons acting as parents leave the State, the non-custodial parent returns." The Act, § 202, Official Commentary at 29.

You may access Michigan's UCCJEA here.

You may access the UCCJEA of all other states here.

Comments

[Jeanne M. Hannah]

(A) When a parent seeks to register an out-of-state child custody determination in order to modify it, they have to swear under oath that the order has never been modified or vacated and they must provide the name and address of the other parent.
(B) On receipt of the documents required by subsection (A), the registering court shall:
(1) cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and
(2) serve notice upon the persons named pursuant to subsection (A)(3) and provide them with an opportunity to contest the registration in accordance with this section.
(C) The notice required by subsection (B)(2) must state that:
(1) a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this State;
(2) a hearing to contest the validity of the registered determination must be requested within twenty days after service of notice; and
(3) failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

(D) A person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:

(1) the issuing court did not have jurisdiction under Sub-article 2;
(2) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Sub-article 2; or
(3) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of § 20-7-60 14, in the proceedings before the court that issued the order for which registration is sought.

(E) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.

(F) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

NOTE that it is important to file a timely objection. If a parent fails to object within the twenty days, then all objections are waived and cannot be raised again.

[Sam Porter]

What happens if one side successfully registers foreign orders in the non-home state BUT the orders are no longer correct (they were modified in the home state before registration)?

Then the side successfully has these wrong orders entered, they ask for an enforcement on them and the referee grants this.

Could the (pro per) party file a motion to dismiss the case or should she just file an objection to referee's ruling and ask for a de novo hearing in front of the judge?

[Jeanne M. Hannah]

Christine, perhaps an example would be more instructive.

Mom and Dad are divorced in North Carolina and Mom is awarded primary custody. She is permitted to move with the children to Illinois. Dad will then want to register the North Carolina judgment in Illinois so that he may enforce parenting time if Mom refuses to obey the Judgment. Or, Mom may want to register the judgment in Illinois so that she can modify it to deny any parenting time outside the US because she's afraid Dad will take the children to a foreign country and keep them there.

Whichever parent wants to register the judgment must use the procedures described above and file it in the court that handles child custody matters in the county where Mom and the children are living.

[Christine]

Exactly where does the foreign judgment get registered? In the county where the non-custodial parent resides or in a central state agency?