UPDATES IN MICHIGAN FAMILY LAW

Can A Child Custody Order Be Made Before a Child Is Born?

A question that will likely arise more often now than in the past is this: Can a child custody Order be made before a child Is born? Or, stated another way: Can a pregnant woman kidnap a fetus?

People have been debating the question of when life begins for a long, long time, whether their focus is political, scientific, religious or legal. Thus, why should we be surprised to learn that appellate courts in fourteen states have considered whether the UCCJEA provides a legal basis for trial courts to make orders concerning the custody of a child before that child has been born. The majority (twelve) of these courts have held that custody jurisdiction cannot exist before a child has been born. [1] In the two minority states, the decisions are flawed by a mere assumption that surely pre-birth jurisdiction must exist. A more careful analysis using proper rules of statutory construction could have prevented these anomalies.

A.       IT’S A DRAMA

The most publicly litigated case (publicized in the press, on the evening news, and of course on blogs—both legal and personal), is that involving Sara McKenna and Olympic skier Bode Miller.

Jurisdiction to make Initial Child Custody Determination

Thanks to Jim Ryan for sending me a Court of Appeals decision released recently. Given the paucity of published cases dealing with the UCCJEA and the increased mobility of parents these days, I'd like to see this decision published.

Huffaker v Huffaker was a child custody dispute involving grandparents with a guardianship in Wayne County and parents who divorced in Utah after the birth of their child in Utah. The case presented the Court of Appeals (COA) with a unique opportunity to explain how to determine which state has subject matter jurisdiction to make the initial child custody determination for an infant who had not resided in the state of birth for 6 months. This is a case that--unfortunately--may mirror many divorce and/or paternity cases that Michigan family lawyers are seeing these days.

Father's rights when adoption of child is secret

This second article in our series on paternity examines specific rights of putative fathers to maintain a parent-child relationship. We look at a biological father whose rights were thwarted when the mother gave the child up for adoption despite his efforts to ensure that she would not do so. Interference by a mother and/or her family resulted in some significant financial consequences. Unfortunately, the jury's award of money was overturned on a technicality.

In Smith v Maloof, 722 So.2d 490 (Miss. 1998), the mother and her parents conspired to deprive a father of his parental rights. This case was fought in Mississippi.

In August 1991, Joe W. Smith, Jr. (Joey) and Natalie Cash Malouf (Natalie) were in a dating relationship, and Natalie became pregnant. Against Joey's wishes, Natalie decided to give the child up for adoption. Natalie then moved away, allegedly to hide from Joey while she was pregnant. Three months before the child was born, on January 14, 1992, Joey initiated legal proceedings against Natalie in the Leflore County Chancery Court seeking a declaration of paternity, order for custody of the child and injunctive relief to stop adoption proceedings within and outside Mississippi. On March 12, 1992, Joey also filed for a temporary restraining order to enjoin the commencement of adoption proceedings. On March 27, 1992, the chancellor issued a permanent injunction in the form of a final judgment which enjoined Natalie and "all who might assist her" from proceeding with an adoption.

On April 21, 1992, the child was born in Marietta, Georgia, then taken to California. From there, the child was adopted by Canadian citizens. On June 16, 1992, Joey and his parents filed suit in the Circuit Court of Leflore County against Natalie and her parents, Alex J. Malouf, Jr. and Patricia Malouf, for intentional infliction of emotional distress, conspiring to prevent Joey from exercising his parental rights and conspiring to effect illegal adoption of a child born out of wedlock. In September 1992, the Maloufs filed a motion to dismiss the complaint claiming that there was no cause of action for which relief could be granted. The trial court granted the motion. Joey appealed that decision in November 1992.

The Supreme Court of Mississippi upheld Joey’s cause of action for intentional inflictions of emotional distress. Smith v. Malouf, 722 So. 2d 490 (Miss. 1998). Ultimately, however, the father’s case was dismissed when the court held that the mother had a constitutional right to travel to California that defeated the father's right to establish a custodial or support relationship with the child.  Download Smith_v._Malouf

The question is: "Would Smith v. Malouf case be decided differently if it were filed today?" I suppose that the answer to that is "It depends upon who is sitting on the U.S. Supreme Court" (if the case reached that level). Many changes have occurred since 1998 that could change the results in Smith v Malouf. While the constitutional right of a mother to travel with child in utero, give birth in New York and maintain a paternity suit in New York trumped a biological father's right to maintain a paternity action in California in McKenna v Miller, when the Court held that the Uniform Child Custody Jurisdiction and Enforcement Act does not apply to a fetus and that a mother's constitutional right to travel does not defeat the father's right to be notified upon the birth of the child and to his right to a hearing on his parental rights.  Download McKenna_v_Miller That case is discussed in this blog post.

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. See the Acknowledgment of Parentage form here.  Download Acknowledgment_of_Parentage 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

You'll find many other valuable resources on my website http://parental-kidnapping.com. If your child is missing, please contact me to see if I can assist you or your attorney in recovery. I've consulted in many interstate parental kidnappings -- 7 in the past 12 months alone -- and can walk your attorney through the process even if Michigan is not one of the states involved. You can email me [email protected] or call me at 231-223-7864 or 231-649-2140.

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.

Resources for International Parental Kidnapping

If your child is kidnapped, your efforts to recover the child should involve planning and response by a wide variety of people in a team effort. This team usually comprises members of many different agencies. The primary organizations or professionals needed in the recovery and reunification of missing children with their parent or parents will include law enforcement (including, in some cases, the FBI), family and dependency court personnel, child protective agencies, other social agencies, including mental health professionals, and victim-witness advocates.

Recovery and Reunification of Missing Children: A Team Approach is a helpful book published by the National Center for Missing & Exploited Children and Missing and Exploited Children Comprehensive Action Program. It is available online without charge.