Does a state court have exclusive, continuing jurisdiction over custody issues?

In today's mobile society where parents and children move from one state to another after a court has made a custody determination, the question often arises, "Does the state that made the initial child custody determination continues to have continuing exclusive 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.

It is helpful to parents facing these questions to know how the courts will likely resolve them. A most important thing to remember is that where a parent continues to reside in the state that made the custody determination, the Uniform Child Custody Jurisdiction and Enforcement Act provides for continuing exclusive jurisdiction over the custody issue.

If both parents and their children have moved to another state, however, this is not true. In White v Harrison-White, the COA was faced with a case where the parents had originally lived in Ontario. The father initially moved to Michigan, commuting to Ontario on weekends. Later, the mother and child followed, and they lived in Michigan for a few years. When the marriage deteriorated, the mother and child moved back to Ontario.

Dad filed for divorce about a month later. The divorce and custody action proceeded in Michigan which was the child's Home State under the Uniform Child Custody Jurisdiction and Enforcement Act. ["UCCJEA"] A parenting-time schedule was set forth in a custody order that allowed the father parenting time on alternate weekends, with one per month to be exercised in Michigan and one to be exercised in Ontario.

As the child got older, Dad received increased parenting time in Michigan, including several weekends per month, several long holiday periods, and three consecutive weeks in the summer. After the trial court awarded Dad the more extended parenting time and makeup parenting time for time that had been denied, Mom filed a motion asking the court to hold that it no longer had exclusive, continuing jurisdiction to modify the custody order. She claimed that the trial court no longer had jurisdiction under "MCL 722.1202(1)(a) and 722.1203" because "neither the child nor his parents have a significant connection with the State of Michigan and substantial evidence is no longer available in the state concerning the child's care, protection, training and personal relationships . . . ." The trial court granted the motion and Dad filed an application for leave to appeal, which was granted.

After looking at decisions from Oregon and California, the Michigan COA held that the Michigan trial court continued to have exclusive continuing jurisdiction because the father still lived in Michigan and the child spent significant parenting time in Michigan with his father. The result turned on the definition of the term "significant connection."

The COA refused Mom's request to give the term the narrow interpretation found in an Oregon case and, instead, looked to a California case, Graham v Superior Court, 132 Cal App 4th 1193, 1196; 34 Cal Rptr 3d 270 (2005). The COA stated:

"Additionally, the Graham court reasoned that its interpretation of "significant connection" comports with the intended application of the UCCJEA, that `[s]o long as one parent, or person acting as a parent, remains in the state that made the original custody determination, only that state can determine when the relationship between the child and the left-behind parent has deteriorated sufficiently so that jurisdiction is lost.' " Graham, supra at 1198, quoting Spector, Uniform Child-Custody Jurisdiction and Enforcement Act (with Prefatory Note and Comments), 32 Fam LQ 301, 340 n 81 (1998).  See also UCCJEA, § 202 comment 1 ("If the relationship between the child and the person remaining in the State with exclusive, continuing jurisdiction becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist.").

Because every child custody case has its own unique set of facts, it's important to attempt to distinguish your pending case from those like the White case and the cases that the COA cited in the White opinion. A parent opposing a court's exercise of continuing exclusive jurisdiction might consider and argue the factual basis to support an argument whether the state having jurisdiction is an inconvenient forum.

Perhaps an argument can be made that would allow the court to decline to exercise its exclusive and continuing jurisdiction. Section 207 of the UCCJEA allows a court to decline to exercise jurisdiction where a party can demonstrate the inconvenience of the forum. Various factors must be considered by the court:

(1) A court of this state that has jurisdiction under this act to make a child-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court's own motion, or the request of another court.

(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including all of the following:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.

(b) The length of time the child has resided outside this state.

(c) The distance between the court in this state and the court in the state that would assume jurisdiction.

(d) The parties' relative financial circumstances.

(e) An agreement by the parties as to which state should assume jurisdiction.

(f) The nature and location of the evidence required to resolve the pending litigation, including the child's testimony.

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.

(h) The familiarity of the court of each state with the facts and issues of the pending litigation.

(3) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child-custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

(4) A court of this state may decline to exercise jurisdiction under this act if a child-custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding. MCL 722.1207

The mother in White had not raised the issue of inconvenient forum in the trial court or on appeal, and the COA refused to consider that argument.

I've seen this issue crop up repeatedly in my family law practice. In the past 12 months, I've had eight interstate parental kidnapping cases, all resolved with children returned to the custodial parent. In one of those cases, I've seen a parent attempt, after both parents and both children had moved from the state of Georgia, to enforce that Georgia decision in states other than Georgia and to dispute the authority of other states' courts to modify that Georgia custody determination.

In that case, the parent granted custody by GA at the time of divorce, later lost custody in a neglect action in a Michigan circuit court. About a year later, she filed a case for enforcement in a different Michigan state court. Sanctions of over $11,000 were ordered because of the misleading and untruthful statements in the papers filed with that court. (By then she had withdrawn her request for enforcement, turning back to Georgia).

When the sanctions were awarded, the parent then appealed this unfavorable result in the Michigan  court of appeals. That appeal was dismissed. She also has fought jurisdiction in an Ohio state family court, the Ohio court of appeals, and presently has a case pending in the Ohio supreme court. Since nothing has gone her way, she has now served a complaint that I like to call "Parent vs The World" -- in the US District Court for the Western District of Michigan.

In the case described above, the parent who lost custody in a neglect action in Michigan, thereafter moved back to GA without the children for a few months. In Georgia, she asked the state court to enforce the GA judgment giving her custody at the time of the divorce (and before the neglect issue arose). This parent continues to claim that because she later moved back to Georgia after losing the children in a neglect proceeding, that the GA judgment should be enforced.

Michigan said "No," GA said "No," Ohio has said "No." A decision is pending in the federal court in Michigan.

In my next post, I'll talk about why the actions of this parent are "forum-shopping" and why the parent could not legally assert jurisdiction in GA once everybody had left there. You may read the opinion in White v Harrison-White here.

The full text of Michigan's UCCJEA may be found here.

More about parental kidnapping may be found here.

Comments

[Steve Alderman]

Another facet to be considered by the courts, in my understanding, is convenience of evidence. In my case, Michigan currently retains continuing modification jurisdiction, as I still live here. My Daughter and her Mother both live in Tennessee.

If the time comes to where I move to Tennessee, Mother will likely attempt to change forums, against my wishes. Do I have a leg to stand on with my argument that the forum is not convenient to the evidence?

[Jeanne M Hannah]

Hello Steve,

Because your child and her mother live in Tennessee, if you also move to TN then Michigan will very likely (as in 99.9%) lose and/or refuse to exercise jurisdiction in your custody/parenting time case.

Once both parents and the child leave the state that has issued the initial child custody determination, then the issuing state no longer has contining exclusive jurisdiction. The other state, in your case Tennessee, then can make its own determination to take jurisdiction. In my experience, family courts are overwhelmed with work and I haven't yet seen one that was asked to terminate its jurisdiction refuse to do so.

The important thing to remember here, though, is that it isn't just that Michigan CAN terminate its jurisdiction. Tennessee may, without consulting with the Michigan court, assume jurisdiction once no parent and no child remains in Michigan. You really have no recourse -- meaning that your argument that Tennessee is an inconvenient forum will not be persuasive. And moving back to Michigan will not revive Michigan's jurisdiction.

Jeanne M Hannah

[MEL]

I NON CUSTODIAL PARENT NOW LIVE IN TEXAS. MY EX LIVES IN MICHIGAN. WITH COURTS APPROVAL AND NEW PARENTING ORDER GRANTED TO ME WHEN I MOVED 16 MTHS AGO TO TEXAS I WAS AWARDED PARENTING TIME OF TWO CHILDREN DURING CHRISTMAS SPRING BREAK THANKSGIVING AND 8 WEEKS IN SUMMER TIME. MY EX IS USING THE KIDS TO TAKE AWAY MY PARETNING TIME. HE TELLS ME THAT MY RELATIONSHIP WITH MY 15 YR SON IS STRAINED BECAUSE I HAVE HOUSE RULES HE MUST FOLLOW AND THAT I WONT LET 15 YR STAY WITH HIM DURING SUMMERTIME. 15 YR OLD LIKES TO COME DOWN ENJOYS HIMSELF BUT WHEN I SAY NO TO SOMETHING HE GOES RUNNING TO DAD TELLING DAD HE IS NEVER COMING BACK. DAD ALLOWS 15 YR THIS SUMMER TO MAKE THE CALL RATHER HE WANTED TO GET ON PLANE AND COME TO MOMS FOR SUMMER. 15 YR OLD OPT NOT TO UNLESS I AGREED TO A 600.00 GYM MEMEBERSHIP. NOW I HAVE FILED A PARENTING COMPLAINT AGAIN DAD (WHICH IS SECOND ONE IN PAST 15 MTHS.) WILL THE JUDGE SAY ITS OK FOR A 15 YR TO MAKE THE PARENTING SCHEDULE OR NOT COME IF HE DOESNT WANT TO? DONT I HAVE ANY RIGHTS?

[Billy Bowman Jr.]

My son's mother has requested that he come to stay the school year with me and my family. They moved from Michigan in April of last year to Arizona but Michigan was still receiving the child support payments from my check every week. The mother said she has NEVER gotten the full amount that comes out of my check deposited into her account every week but they catch it up at the end of the month. She has recently written the courts in Michigan that she no longer wants them to be in charge of this for several reasons, they don't live there anymore and she feels like they made her do this when she was fine getting the payments directly from me each week. They sent she and I a letter stating that they needed copies of our financial forms, check stubs, etc. to update the reviews but why do they need that when she has sent a letter stating she doesn't want them involved any longer? What are our rights here? It's almost like they are determined to keep this in their control and they don't care what's best for our son.

[Jeanne M Hannah]

Hello Billy,

I would be happy to consult with you and to help you with the paperwork to do what you seek here . . . to opt out of the Friend of the Court. However, I would have to do this on a fee-based schedule. Please contact me by email to arrange a consultation. My email address is: jeannemhannah@charter.net

Jeanne M Hannah

[D.B. - michigan]

My step daughter moved to CO to find work, she left her son with his father who left her for another women. Neither one of them has filed for divorce or legle seperation, so can my daughter who now has a job come and take her son to CO to live with her without getting in trouble with the law? The father in this case only works under the table jobs so really has no history of working.

[Jeanne M Hannah]

D.B., Your question involves various legal issues, and would take a consultation to discuss. You may call my office to arrange a fee-based consultation if you wish. 231-275-5600