Let’s say you and your significant other have a child together in New York, and then you both decided to separate. You and the child move to Michigan, and you ex-significant other moves to California. You file a request for child custody and child support here in Michigan, and the court tells you that you actually need to go to and from New York to have the court proceedings there. How can this be?
Regardless of the combination of states involved, this situation is common for many Michigan parents who move and then want to seek or amend child custody and child support orders.
What is jurisdiction?
The heart of this issue becomes which states has jurisdiction and proper venue over your case. Jurisdiction means what court authority has the power to listen to a case and rule on it. In order to understand what exactly jurisdiction means, it is first important to understand the different between subject matter jurisdiction and personal jurisdiction. Personal jurisdiction refers to a court’s ability to make an order regarding a particular person or entity. Subject matter jurisdiction refers to a court’s ability to listen to a particular type or subject of a case.
What can be done?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) of 1997 was drafted by the National Conference of Commissioners on Uniform State Laws and has become the premier model system for how to handle interstate child custody determinations. Nearly all of the states have enacted their own versions of the same state law.
There are different jurisdiction procedures that are necessary depending on the type of action or court order being requested:
For simultaneous child-custody proceedings, courts look to the UCCJEA adoption from the state in question. In Michigan, the court looks to MCL 722.1206. Our own statute states that a Michigan court, “cannot exercise its jurisdiction . . . if at the time of the commencement of the proceeding, a child-custody proceeding has been commenced in a court of another state having jurisdiction substantially in conformity with this act.” Michigan can still exercise jurisdiction though, if the other state terminates or stays the proceeding, or if Michigan is found to be a more convenient state for the proceeding.
For initial custody orders, our Michigan court looks to MCL 722.1201 and looks at whether Michigan, “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 of person acting as a parent continues to live in this state.” Michigan courts also look to whether one or both parents have significant connections to the state. That is not determined solely based upon residency.
To determine if a state is an inconvenient forum, Michigan courts look to multiple factors, including:
a) Whether domestic violence has occurred and if 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.”
In determining whether our state can exercise personal jurisdiction over a nonresident defendant to establish a child support order, the court looks to the Uniform Interstate Family Support Act (UIFSA). In Michigan, the court may exercise jurisdiction if under MCL 552.1201,
a) The individual is personally served with notice within this state.
b) The individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filling a responsive document having the effect of waiving any contest to personal jurisdiction.
c) The individual resided with the child in this state.
d) The individual resided in this state and provided prenatal expenses or support for the child.
e) The child resides in this state as a result of the acts or directives of the individual.
f) The individuals engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse.
g) The individual asserted parentage of a child in the central paternity registry maintained in this state by the department of health and human services.
h) There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.”
Under MCL 552.2204 there are also limited circumstances in which Michigan can choose to exercise jurisdiction. These circumstances can include whether Michigan is the home state of the child.
Choosing Michigan, or not.
At The Kronzek Firm, our experienced family law attorneys have helped many parties determine the right state that works for them to file and to litigate child custody or child support proceedings. If you or a loved one are being asked to travel hundreds of miles away to pursue custody or child support proceedings, we’re here to help. Call our main office at 866 766 5245 to discuss your options.