Scott Bassett, Michigan family law appellate lawyer, recently responded to a colleague's question about custodial rights of mother and father when the parents are not married.
"Mom has custody, but by operation of law, not by court determination, and the father is not to be prejudiced by this status when filing an action to seek custody or parenting time.
"After both the mother and the father properly sign the acknowledgment of parentage and it is filed with the state, the mother has initial custody of the child (including legal custody), without prejudice to the determination of either parent’s custodial rights, until otherwise determined by the court or agreed by the parties. MCL 722.1006. However, this initial custodial grant to the mother does not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time. Id. Because an initial grant of custody pursuant to MCL 722.1006 is by operation of law and not by judicial determination, a noncustodial parent is not required to demonstrate proper cause or a change in circumstance to modify this initial custodial grant. Sims v Verbrugge, 322 Mich App 205 (2017). A police agency may rely on a duly executed acknowledgment of parentage as establishing the mother’s custody of the minor child, unless presented with a court order or written agreement signed by the parties stating otherwise. OAG No 7191 (Mar 28, 2006)."
Thank you, Scott, for calling attention to this statute and for explaining it. I find that it is largely unknown by so many, including law enforcement and by some courts. Because fewer people are marrying and there are increasing numbers of children born out of wedlock, hopefully with an AOP signed (and often without), I expect this trend to increase--meaning I expect to see increasing numbers of intrastate child abduction in the future.
In the past few years, I've had several intrastate child abduction cases. In one case, an 18 month old child was removed 400 miles from Mother's residence, was hidden for seven weeks by the father and his relatives. The child's young age and child development status made him at risk for separation anxiety when he was removed from his primary caregiver. It took some convincing of law enforcement and the court in the county to which Father had removed the child that the child had been "abducted." "Why are you calling this an abduction?" asked the sheriff and his deputy. In their view, the father had as much right to take the child as the mother had to retain the child. Much explanation and then the judge's authorization of the UCCJEA Warrant was required for recovery. After that, there was a three hour "ride-about" to recover the child, with mother, myself, and mother's support persons following the Deputy Sheriff. Because this occurred in a very small town, law enforcement was able to locate the child by calling around to known relatives.
However, imagine the difficulty of recovery if the child is taken out of state. Law enforcement can, if proper actions are taken to obtain an Amber Alert, and if the taking parent has a cell phone number that can be pinged, locate a child. Since 2004 when I had two interstate abductions simultaneously requiring my assistance in two separate recovery efforts at the same time, too many people and too many agencies have released information about GPS locator information, so it is not always available when a parent "goes off the grid." [For the record, this is the first time I have publicly spoken about GPS locator information.]
Because most young parents will usually take a child to a residence in which they have no property interest, to recover the child, law enforcement has to have the authority of a Warrant to recover the child and indemnification from liability for entering onto private property. The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") provides for issuance of such a Warrant. MCL 722.1310. That Warrant, to protect law enforcement from liability for entry onto private property belonging to a third party (perhaps even busting down the door), must use the word "COMMANDED" rather than "Ordered" or "requested." An example of appropriate language follows:
YOU ARE COMMANDED to act in concert with Child Protective Services and to remove the child
from the care and custody of Defendant Mother and/or any third party custodian and to take into
custody the following child(ren) at any place where you may find such child:
Name ______________ DOB ______________Location (if known) ________________________.
YOU ARE FURTHER COMMANDED AS TO THIS WARRANT THAT: [Specify]
The following conditions are necessary to ensure the recovery of the child: This Warrant
[ X ] may be executed by entering private property because this Court finds that there is a risk
that the infant will not be recovered unless law enforcement agencies may enter private property. 1
[ X ] may be executed on Sunday.
[ X ] may be executed at night. 2
[ X ] is subject to the following restriction(s): NONE
Footnotes.
1 Requires a finding that a less intrusive remedy would not be effective.
2 Requires a finding that exigent circumstances require execution of the warrant at any hour in order to protect the children.
Practice Pointer: Advise your client mothers to carry at all times a copy of the AOP, a certified copy of the child's birth certificate, a copy of MCL 722.1006--and perhaps a copy of OAG No 7191 (Mar 28, 2006). There is nothing more traumatic for children age birth to 24-30 months than separation from the child's primary caregiver. That is a developmentally sensitive time for children. Separation anxiety is something we'd expect to see in this situation. And yet, we all know that law enforcement officers so often (usually? always? or "used to"?) tell mothers whose children have been taken by the other parent: "This is a civil matter. There is nothing I can do. YOU need to go to court." Law enforcement officers and prosecuting attorneys rightfully say "I'm not a judge. I cannot determine which parent has the right to have 'possession' of the child." The enactment of MCL 722.1006 was, in part, to provide certainty for law enforcement officers and courts when they assist in recovery, and to provide a safety net for mothers and especially for children to avoid abduction, to assist in quick restoration of custody until Father has gone to court to establish his custodial rights. "Child abduction is one of the worst forms of child abuse." Abbott v Abbott, 130 S.Ct. 1983, 1997 (2010).
We live in a mobile society. Relocations are increasing. As family attorneys, we can help our clients who have children out of wedlock by providing them with the above facts so that they can protect themselves. By that, I am not referring only to mothers. I am particularly referring to fathers who have a constitutional right to exercise a custodial relationship with their children. My favorite phrase applies here: "Knowledge is Power."
