What is your child's "home state"?
In today’s world, families often move to where jobs are available. In Michigan, it is not unusual for its citizens to work in Indiana and live in Michigan or work in Windsor, Canada and live in Michigan or the opposite or in Ohio. Sometimes, because of economic necessity, kids may even live with grandparents in another state.
In divorce, the question is what state or country has jurisdiction to determine custody of the minor children of the parties? The divorce action may be in Michigan, however, jurisdiction of custody of the minor children may be in another state or country.
To help us in determining which state has jurisdiction on the issues of custody and parenting time, 49 states, DC, Guam and the U.S. Virgin Islands have adopted what is known as the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The only state that has not adopted the act is Massachusetts and neither has Puerto Rico (UCCJEA) MCL722.1201.
The UCCJEA vests exclusive and continuing jurisdiction for child custody litigation in Courts of the child’s “home state.” The word “state” includes within its definition countries. The words “home state” is defined as the state where the child has lived with a parent for 6 consecutive months prior to the commencement of proceedings (or since the birth of the child younger than 6 months).
If the child or children have not lived in any state with a parent for 6 months, then the state with the most significant contact with the child or children has jurisdiction over custody issues.
In the unpublished Michigan Court of Appeals case of Faulkner vs. Cruz decided June 11, 2020, Case No. 351409, the children of the parties lived in Michigan and attended schools in Michigan for 9 consecutive years. In September of 2019 mother moved to Ohio with the children and enrolled them in school in Ohio.
Dad filed a request with the Michigan Court asking that the Court determine that Michigan under UCCJEA had jurisdiction for determination of custody. Mom countered that Ohio was the proper state for jurisdiction of the custody issue because an initial custody order had been entered in Ohio and Ohio had not relinquished jurisdiction.
Once a Court of another state has rendered a child custody determination, a Michigan Court shall not modify this Order, MCL §722.1203, unless certain criteria are established under sections 201(1)(a) or (b).
a. The Court of the other state determines it no longer has exclusive, continuing jurisdiction under 202 (MCL 722.1202) or that a Court of this state would be a more convenient forum under section 207 (MCL722.1207)
b. A Court of this state or a Court of another state determines that neither the child nor the parent of the child, nor a person acting as a parent presently resides in the other state.
The Trial Court and the Court of Appeals concluded that the Ohio Court did not have exclusive, continuing jurisdiction over the matter because both parents and the children had lived in Michigan for the preceding 9 years.
The take away on the issue of what state has jurisdiction over your children is to make sure that your children never stay in another state or country for more than 6 months if you want the state you live in to have custody of your children in a divorce situation. The “home state” of your children should be where you live.
Ross Stancati handles cases in Kalamazoo and all surrounding counties. Call 269-381-4471 to schedule a consultation.