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The UCCJEA – When a child lives out of state.

The UCCJEA provides a road map to resolve conflicts arising from another state or country asserting jurisdiction over a child custody proceeding. For example on July 23, 2019, the Michigan Court of Appeals issued an opinion in the case of Hernandez v. Mayoral-Martinez, No. 347131

In the Hernandez case, the parents lived in Michigan and the child was living in Mexico for over a year with the maternal grandmother. The father brought an action in Michigan to return the child to Michigan and the grandmother started to commence an action in Mexico to keep the child there.

  • The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs child-custody proceedings involving Michigan and a party outside of the state or country. See: Cheesman v Williams . When a child lives outside of the state or country, the UCCJEA requires a determination of the child’s “home state”.
  • Home state is defined as “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.” See: MCL 722.1102(g).
  • Under Michigan law, a court can assert jurisdiction and make an initial custody determination when the child is living in Michigan (e.g. the home state) for at least six months prior to starting the proceedings.  See: MCL 722.1201.

What if another state (or country) is the child’s home state under the UCCJEA.

The UCCJEA treats other countries as another state. For example, Mexico, Japan or Ireland are treated the same as Maine, California or Texas under the law. See: Michigan Compiled Laws section 722.1105(1).

In the Hernandez case, the child lived in Mexico with her maternal grandmother for over a year. So when the father commenced the custody action in Michigan, Michigan was not the child’s home state nor had it been in the prior six months. As a result, the Michigan Court of Appeals determined that the circuit court correctly concluded that Michigan was not the child’s home state.

  • When Michigan is not the child’s home state, the next question is whether another state is the child’s home state. See MCL 722.1201(1)(b).

In the Hernandez case, the circuit court determined (the Michigan Court of Appeals disagreed) that Mexico was the child’s home state because she had been living there with “a person acting as a parent”, specifically, the maternal grandmother.

  • Under the UCCJEA, a “Person acting as a parent” means a person, other than a parent, who meets both of the following criteria:
  1. Has physical custody of the child or has had physical custody for a period of 6 consecutive months, including a temporary absence, within 1 year immediately before the commencement of a child-custody proceeding and;
  2. Has been awarded legal custody by a court or claims a right to legal custody under the law of this state. [MCL 722.1102(m).]

In the Hernandez case, the maternal grandmother had not been awarded legal custody of the child when the trial court determined that it did not have jurisdiction to decide the case because Michigan was not the home state.

  • When there is no home state the next step is to consider whether Michigan has “significant connections” jurisdiction under MCL 722.1201(1)(b).
  • A court has jurisdiction pursuant to that provision when a court of another state does not have jurisdiction and the court finds both of the following:
  1. 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 and
  2.  Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships. [MCL 722.1201(1)(b).]

In the Hernandez case, the Michigan Court of Appeals determined that the child had significant connections with Michigan because she was born in Michigan and lived there for the first year of her life. In addition, both of her parents live in Michigan.

Although the road is sometimes long and complicated, the UCCJEA provides a road map for determining what state (or country) has the legal authority to decide a child custody action.

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