OAKLAND COUNTY TOLD TO DO IT AGAIN

Oakland Circuit Court child custody decision done wrong says higher court. The article presented by Divorce attorney Terry Bankert if you need immediate help call 810-235-1970

The Oakland County Child Custody in Family Division case number is 2008-743369-DM. The Michgian Court of Appeals heard this Oakland Child Custody case and filed an unpublished opinion, January 12, 2010, No. 293443. The parties are TODD MICHAEL DEKINDEREN,
Plaintiff-Appellant, RENEE MARY DEKINDEREN, Defendant-Appellee.
Before: Wilder, P.J., and O’Connell and Talbot, JJ.
PER CURIAM.

This opinion has been modified for media presentation. The original can be seen at [1]
FATHER Plaintiff appeals as of right an order granting MOTHER defendant’s motion to decline jurisdiction.

We reverse. THE MICHIGAN COURT OF APPEALS REVERSED THE DECISION OF THE OAKLAND CIRCUIT COURT FAMILY DIVISION HEARING A CHILD CUSTODY CASE.


UCCJEA ISSUE,

WHAT IF THE CHILD IS ONT A 6 MONTH RESIDENT
FATHER Plaintiff argues that Michigan had jurisdiction to make an initial custody determination
pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCL
722.1101 et seq., because the parties’ minor child did not reside in any single state for six months and, therefore, did not establish residency in any other state sufficient to confer jurisdiction.
　
FATHER Plaintiff thus contends that the OAKLAND CIRCUIT trial court erred when it failed to consider MCL 722.1202(1),which provides that once a Michigan court has made a child custody determination, as in the case at bar, that court has continuing jurisdiction.


OAKLAND WAS WRONG WHENI IT FIRST MADE A DECISION ON CUSTODY
We , THE MICHIGAN COURT OF APPEALS conclude that the OAKLAND COUNTY trial court did not have jurisdiction to make the initial custody determination during the divorce proceeding because
Michigan was not the child’s home state.


BUT WHEN NO STATE WOULD HAVE JURISDICTION AND THE CHILD IS IN MICHIGAN WHAT SHOULD THE COURT DO?

Nevertheless, the trial court abused its discretion in failing to analyze whether it could exercise continuing jurisdiction to consider plaintiff’s motion to change custody, in light of the possibility that no other state had jurisdiction or all states having jurisdiction had declined to exercise it.

UCCJEA JURISDICTION IS DISCRETIONARY, EVERY CHILD GETS A COURT

“Whether a trial court has subject-matter jurisdiction presents a question of law that this
Court reviews de novo. However, the determination whether to exercise jurisdiction under the
UCCJEA [is] within the discretion of the trial court, and would not be reversed absent an abuse
of that discretion.” Nash v Salter, 280 Mich App 104, 108; 760 NW2d 612 (2008) (internal
citations omitted).

THE MICHIGAN COURT OF APPEALS NORMALLY WOULD STAY OUT OF THE WAY

“Generally, an appellate court should defer to the trial court’s judgment, and
if the trial court’s decision results in an outcome within the range of principled outcomes, it has
not abused its discretion.” Jamil v Jahan, 280 Mich App 92, 100; 760 NW2d 266 (2008). In
addition, this court reviews issues of statutory construction de novo as questions of law. Nash,
supra at 108-109.

JUST WHAT POWER DOES THE UCCJEA GIVE

This matter involves the UCCJEA, which “prescribes ‘the powers and duties of the court
in a child-custody proceeding involving this state and a proceeding or party outside of this state .
. . .’” Fisher v Belcher, 269 Mich App 247, 260; 713 NW2d 6 (2005).

PRIMER ON STATUATORY INTERPRETATION

“The primary goal of statutory interpretation is to ascertain and give effect
to the intent of the Legislature in enacting a provision. Statutory language should
be construed reasonably, keeping in mind the purpose of the statute. The first
criterion in determining intent is the specific language of the statute. If the
statutory language is clear and unambiguous, judicial construction is neither
required nor permitted, and courts must apply the statute as written. However, if
reasonable minds can differ regarding the meaning of a statute, judicial
construction is appropriate.” [White v Harrison-White, 280 Mich App 383, 387;
760 NW2d 691 (2008), quoting USAA Ins Co v Houston Gen Ins Co, 220 Mich
App 386, 389-390; 559 NW2d 98 (1996) (internal citations omitted).]

ANALYSIS

Plaintiff is a Michigan resident. However, neither defendant nor the child has ever lived
in Michigan. Thus, the current action constitutes an interstate custody dispute and “MCL
722.1201 sets forth the basic jurisdictional requirement for making an initial custody
determination.” Nash, supra at 109. MCL 722.1201 provides:
(1) Except as otherwise provided in [MCL 722.1204, which concerns temporary
emergency jurisdiction], a court of this state has jurisdiction to make an initial
child-custody determination only in the following situations:
(a) This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child within 6
months before the commencement of the proceeding and the child is absent from
this state but a parent or person acting as a parent continues to live in this state.
(b) A court of another state does not have jurisdiction under subdivision
(a), or a court of the home state of the child has declined to exercise jurisdiction
on the ground that this state is the more appropriate forum under [MCL 722.1207,
which concerns an inconvenient forum, or MCL 722.1208, which concerns
unjustifiable conduct of the parties], and the court finds both of the following:
(i) The child and the child’s parents, or the child and at least 1
parent or a person acting as a parent, have a significant connection with
this state other than mere physical presence.
(ii) Substantial evidence is available in this state concerning the
child’s care, protection, training, and personal relationships.
(c) All courts having jurisdiction under subdivision (a) or (b) have
declined to exercise jurisdiction on the grounds that a court of this state is the
more appropriate forum to determine the custody of the child under [MCL
722.1207 or MCL 722.1208].
(d) No court of another state would have jurisdiction under subdivision
(a), (b), or (c).
(2) Subsection (1) is the exclusive jurisdictional basis for making a child-custody
determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a party or a child is neither
necessary nor sufficient to make a child-custody determination.

DEFINITIONS

Pursuant to MCL 722.1102(h), “‘Initial determination’ means the first child-custody
determination concerning a particular child.” Under MCL 722.1102(c),
“Child-custody determination” means a judgment, decree, or other court
order providing for legal custody, physical custody, or parenting time with respect
to a child. Child-custody determination includes a permanent, temporary, initial,
and modification order. Child-custody determination does not include an order
relating to child support or other monetary obligation of an individual.

APPLICATION OF LAW TO FACTS

Thus, in this case, the provisions of the divorce judgment that addressed custody and parenting
time of the parties’ minor child constituted an initial custody determination.

HOME STATE GETS TO MAKE INITIAL CUSTODY DECISION

Under the UCCJEA, home-state jurisdiction is the sole focus for an initial custody
determination. See White, supra at 388 (noting that replacing the Uniform Child Custody
Jurisdiction Act with the UCCJEA was designed, in part, to rectify jurisdictional issues by
prioritizing home-state jurisdiction).

AT LEAST MEANS -0-6 MONTHS

Plaintiff’s claim that a child under six months old has no
home state ignores the plain language of the statute. MCL 722.1102(g) states,
‘Home state’ means the state in which a child lived with a parent or a
person acting as a parent for at least 6 consecutive months immediately before the
commencement of a child-custody proceeding. In the case of a child less than 6
months of age, the term means the state in which the child lived from birth with a
parent or person acting as a parent. A period of temporary absence of a parent or
person acting as a parent is included as part of the period. [Emphasis added.]

THE CHILD LIVED IN NORTH CAROLINA

In this case, the child was born on June 7, 2008, in North Carolina. Although plaintiff’s
amended complaint, filed on July 1, 2008, stated that the child resided in Orion, Michigan, in
fact, at the time the complaint was filed through the time the divorce judgment was entered on
August 27, 2008, the child lived in North Carolina.

WHAT DOES LIVED MEAN? PHYSICAL PRESENCE!

“When interpreting a uniform act, . . . it is appropriate for this Court to look for guidance
in the caselaw of other jurisdictions in which the act has been adopted.” Heritage Resources, Inc
v Caterpillar Financial Services Corp, 284 Mich App 617, 632; 774 NW2d 332 (2009). Texas
has also adopted the UCCJEA, and we agree with the Texas Supreme Court that
The word ‘lived’ strongly connotes physical presence. See Webster’s Third New
International Dictionary, 1323 (1961) (defining “live” as “to occupy a home”).

THE LEGISLATURE SAID WHAT IT MENT AND MENT WHAT IT SAID

We think it significant that the Legislature chose the word ‘lived’ as opposed to
‘resided’ or ‘was domiciled.’ The test for ‘residence’ or ‘domicile’ typically
involves an inquiry into a person’s intent. In our view, the Legislature used the
word ‘lived’ “precisely to avoid complicating the determination of a child’s home
state with inquiries into the states of mind of the child or the child’s adult
caretakers.” [Powell v Stover, 48 Tex Sup Ct J 780; 165 SW3d 322, 326 (2005)
(internal citations omitted).]

PHYSICAL LOCATION IS CENTRAL

“The purposes behind the UCCJEA further suggest that a child’s physical location is the central
factor to be considered when determining a child’s home state. The UCCJEA was intended to
make the determination of jurisdiction more straightforward.” Id.

MICHIGAN WAS NOT THE HOME STATE IN THE BEGINNING

Therefore, pursuant to MCL 722.1102(g), despite whether plaintiff was a resident of Michigan, the child’s home state was North Carolina, and Michigan courts did not have jurisdiction to make an initial custody
determination1 under MCL 722.1201(1)(a) by virtue of being the child’s home state.

IS LIVED THE SAME AS PRIMARY RESIDENCE?

We cannot necessarily fault the trial court for exercising jurisdiction, however, because
plaintiff’s amended complaint represented that the child’s “primary residence” was in Orion,
Michigan.

WHAT DID THE OAKLAND COUNTY COURT KNOW AND WHEN DID IT KNOW IT

There is no transcript of any hearing that took place before entry of the default
judgment and, therefore, we cannot know whether the trial court was aware that the child was
living in North Carolina at the time.2 This is relevant, however, because plaintiff later claimed
that North Carolina refused to hear his divorce action since neither he nor defendant had
established a residence there. If plaintiff’s claim were true (and no proof was offered to establish
or negate this), then the Michigan court might have exercised jurisdiction to make an initial
custody determination under MCL 722.1201(b) or (c), as provided above.

ONE MANS CONUNDRUM IS ANOTHER SLAM DUNK

The conundrum, of course, is that despite what appears to be a lack of jurisdiction, the
Michigan court made an initial custody determination, by which the parties abided until June 3,
2009, when plaintiff filed his emergency petition for extended parenting time pending the
hearing on his motion for change of custody.

SLAM DUNK

“Once an initial child-custody determination occurs, exclusive, continuing jurisdiction generally remains with the decreeing court.” Atchison v Atchison, 256 Mich App 531, 538; 664 NW2d 249 (2003). A court’s exercise continuing jurisdiction under the UCCJEA is explained in MCL 722.1202, which provides in pertinent part,
(1) Except as otherwise provided in [MCL 722.1204], a court of this state that has made a
child-custody determination consistent with [MCL 722.1201 or MCL 722.1203] has
exclusive, continuing jurisdiction over the child-custody determination until either of the
following occurs:
(a) A court of this state determines that neither the child, nor the child and 1
parent, nor the child and a person acting as a parent have a significant connection with
1 The parties do not dispute that Michigan had jurisdiction to enter the divorce decree.
2 However, it seems unlikely that the trial court knew where the child was living when the
default judgment was entered given that at the later hearing on defendant’s motion for Michigan
to decline jurisdiction, the court asked whether the child was born in Michigan or had ever lived
in Michigan.
this state and that substantial evidence is no longer available in this state concerning the
child’s care, protection, training, and personal relationships.
(b) A court of this state or a court of another state determines that neither the
child, nor a parent of the child, nor a person acting as the child’s parent presently resides
in this state.
(2) A court of this state that has exclusive, continuing jurisdiction under this section may
decline to exercise its jurisdiction if the court determines that it is an inconvenient forum
under [MCL 722.1207].
(3) A court of this state that has made a child-custody determination and that does not
have exclusive, continuing jurisdiction under this section may modify that child-custody
determination only if it has jurisdiction to make an initial child-custody determination
under [MCL 722.1201].
Thus, because the initial custody determination was not made consistently with MCL
722.1201 (that is, Michigan was not the child’s home state at the time the trial court made the
initial custody determination and plaintiff did not argue at that time that the child’s home state
declined jurisdiction), the trial court could not exercise continuing jurisdiction pursuant to MCL
722.1202(1)(a). However, MCL 722.1202(3) indicates that the trial court could have potentially
exercised continuing jurisdiction if it were true that pursuant to MCL 722.1201(b), (c), or (d), no
other court qualified as the child’s home state or all other states with jurisdiction had declined to
exercise it.

At the time plaintiff filed his emergency petition on June 3, 2009, the child, then just shy
of his first birthday3, was apparently living in Quantico, Virginia, although it is unclear how long
he had been there. At the hearing on defendant’s motion for the trial court to decline
jurisdiction, defense counsel stated that defendant (who had custody of the child) “lived in North
Carolina from August 2007 until just the last few months she’s moved to Virginia . . . .”
However, when asked to clarify what she meant by “the last few months,” defense counsel
answered, “Two or three months, I’m not exactly sure.” Defendant never complied with MCL
722.1209(1), which provides in pertinent part,
Subject to the law of this state providing for confidentiality of procedures,
addresses, and other identifying information, in a child-custody proceeding, each
party, in its first pleading or in an attached sworn statement, shall give
information, if reasonably ascertainable, under oath as to the child’s present
address, the places where the child has lived during the last 5 years, and the
names and present addresses of the persons with whom the child has lived during
that period.”
3 The child’s date of birth is June 7, 2008.

OAKLAND COURT SHOULD HAVE MADE SURE THE CHILD HAD A HOME STATE

The trial court’s position appeared to be that since plaintiff conceded that defendant lived in
North Carolina at the time the child was born, no further information was necessary. However,
for the trial court to properly decide whether it could exercise continuing jurisdiction, it was
necessary to determine whether the child had a home state and whether another court or courts had jurisdiction.

NO PROOFS WERE GIVEN OR ASKED? A POSSIBILITY WAS LEFT OPEN

It appears from defense counsel’s statements that the child had lived in North Carolina
for at least six months before moving to Virginia and, thus, North Carolina would remain the
child’s home state (now that the child was over six months old). However, no proof was offered
to support this assertion, nor did the trial court ask for any. Therefore, it is possible that Virginia could have been the child’s home state at the time of the hearing. Moreover, plaintiff alleged at
the motion hearing that defendant had also lived in California for some period of time after the
child’s birth. Therefore, it is also conceivable that, having not lived in any one place for at least
six months, the child had no home state.

ATTORNEY TESTIMONY WAS RELIED UPON

In addition, at the motion hearing, plaintiff’s attorney claimed that North Carolina declined jurisdiction over both the initial divorce action and allegations that defendant abused the child, but again, no proof was offered and the trial court did not request any.
It is worth noting that had a North Carolina court considered hearing plaintiff’s motion to
change custody, the guiding provision would be MCL 722.1203, which provides:
Except as otherwise provided in [MCL 722.1204], a court of this state
shall not modify a child-custody determination made by a court of another state
unless a court of this state has jurisdiction to make an initial child-custody
determination under [MCL 722.1201(1)(a) or (b)] and either of the following
applies:
(a) The court of the other state determines it no longer has exclusive,
continuing jurisdiction under [MCL 722.1202] or that a court of this state would
be a more convenient forum under [MCL 722.1207].
(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. [Emphasis added.]
If North Carolina was no longer the child’s home state, one can see why the North Carolina court
might have concluded that it did not have jurisdiction to modify an initial custody determination
made by a Michigan court.

THE MULTI STATE COURT DID NOT HAVE TO TALK BUT THEY SHOULD HAVE

One would have hoped that the Oakland Circuit Court or a court in North Carolina or
elsewhere might have inquired whether some court, somewhere, had assumed jurisdiction over
this case, given the allegations of abuse.4 Although communication between courts is not
required unless proceedings have been filed in two different states, MCL 722.1206(2), pursuant
to MCL 722.1110(1), “[a] court of this state may communicate with a court in another state
concerning a proceeding arising under this act.” Further, MCL 722.1112 states, in pertinent part:
(1) A court of this state may request the appropriate court of another state to do
any of the following:
(a) Hold an evidentiary hearing
(b) Order a person to produce or give evidence under procedures of that
state.
(c) Order that an evaluation be made with respect to the custody of a child
involved in a pending proceeding.
(d) Forward to the court of this state a certified copy of the transcript of
the record of the hearing, the evidence otherwise presented, and an evaluation
prepared in compliance with the request.
(2) Upon request of a court of another state, a court of this state may hold a
hearing or enter an order described in subsection (1).


MICHIGAN COURT OF APPEALS TROUBLED WITH THE OAKLAND COUNTY COURT

We are also somewhat troubled that, despite the fact that the Oakland County Friend of
the Court (FOC) was in the process of conducting an investigation, there is no indication that the
court reviewed the report or the conclusions; rather, once the court determined that it did not
have jurisdiction, it ordered the investigation closed.

DEFENDANT ADMITTED CHILD ABUSE TO FOC

Plaintiff claims that during an interview with the FOC, defendant admitted to biting the child. At the very least, if the child were actually in the state of Michigan at the time of the motion hearing (which is not clear from the lower court record or the brief), the trial court could have exercised temporary emergency
Jurisdiction pursuant to MCL 722.1204(1), which states,
A court of this state has temporary emergency jurisdiction if the child is
present in this state and the child has been abandoned or it is necessary in an
emergency to protect the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment or abuse.”

OAKLAND COURT SHOULD HAVE THOUGHT HARDER

Although any error in failing to move for the exercise of such jurisdiction, if appropriate, would
have been plaintiff’s, for all of the above stated reasons, we find that the trial court abused its
discretion in failing to consider whether it could properly exercise continuing jurisdiction in light
of the possibility that no other state had jurisdiction over the child or other states having such
jurisdiction had declined to exercise it.

BAD LOCAL COURT DECISION

THE MICHGIAN COURT OF APPEALS Reversed and remanded for further proceedings BY THE OAKLAND COUNTY FAMILY COURTin accordance with this opinion.


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[1]
http://www.icle.org/contentfiles/mlo/unpublished/20100112_293443.pdf