Foster v. Wolkowitz , 486 Mich. 356 ( 2010 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED JULY 1, 2010
STATE OF MICHIGAN
SUPREME COURT
LEAH ROSE FOSTER,
Plaintiff-Appellee,
v No. 139872
DAVID KENNETH WOLKOWITZ,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
YOUNG, J.
At issue in this case is whether the statutorily required presumptive award of
custody given to a mother when an acknowledgment of parentage (AOP) is executed
pursuant to the Acknowledgment of Parentage Act, MCL 722.1001 et seq., serves as an
“initial custody determination” under the Uniform Child-Custody Jurisdiction and
Enforcement Act (UCCJEA), MCL 722.1101 et seq. We hold that it does not. An
acknowledgment of parentage, signed by the parents and filed with the State Registrar, is
not an “initial custody determination” under the UCCJEA because it is does not satisfy
the definition of “initial custody determination” provided in that act. Nevertheless, the
presumptive award of custody contained in the Acknowledgment of Parentage Act
remains part of a valid agreement into which the parents entered, and may be set aside
only when a custody determination has been made by the judiciary.
Under the UCCJEA, a child’s initial custody determination must take place in the
child’s home state, unless the home state declines to exercise home-state jurisdiction
under the UCCJEA because another state would be a more appropriate forum. In this
case, we conclude that Illinois is the child’s home state, and thus only it has the authority
to determine whether Michigan is the more appropriate forum. We remand to the
Monroe Circuit Court for further proceedings consistent with this opinion. Pending
resolution of the home-state jurisdictional issue, the award of custody to the mother that
was stipulated by the parties pursuant to Acknowledgment of Parentage Act, as well as
the temporary orders concerning parenting time and child support, remain intact.
FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant are the biological parents of M., born October 12, 2006.
Plaintiff and defendant cohabitated but never married. The parties moved from Illinois to
Michigan months before M. was born in Michigan. On January 25, 2007, plaintiff and
defendant executed and filed an AOP naming defendant as the child’s father and
establishing paternity.
In April 2007, the parties and the child returned to Illinois and continued to reside
together. Plaintiff attended college and worked, while defendant attended law school.
Both parties had Illinois driver’s licenses, and M. received state health insurance that
required Illinois residency. During the time that the family resided in Illinois, plaintiff
2
regularly returned to Michigan with the child for extended visits with Michigan family
members.
In May 2008, the relationship between the parties ended, and plaintiff and the
child returned to Michigan to live with plaintiff’s parents. Five days after returning to
Michigan, plaintiff filed a paternity action in the Monroe Circuit Court. Additionally,
plaintiff filed an ex parte petition for alternative service, temporary custody, and the
scheduling of a UCCJEA conference. On May 18, 2008, the Michigan trial judge entered
an ex parte order granting the request for alternative service and a UCCJEA conference,
but declined to address the custody issue. On June 4, 2008, defendant filed a custody
action in Illinois.
On July 7, 2008, a telephone conference was held between the judges from the
Michigan and Illinois courts, as well as the parties, to discuss which state had home-state
jurisdiction under the UCCJEA. Defendant argued that Illinois had jurisdiction under the
UCCJEA. Plaintiff argued that Michigan should exercise jurisdiction because the child
was residing with plaintiff in Michigan, plaintiff’s petition had been filed first, and both
plaintiff and the child had significant ties to Michigan. Both the Illinois and Michigan
judges expressed initial agreement that jurisdiction should lie in Michigan, but also
agreed that an evidentiary hearing should be held in Michigan in order to determine
which state had home-state jurisdiction. Defendant was granted parenting time in
Michigan “at his convenience.”
After adjournments, discovery, and failed settlement attempts, the jurisdictional
hearing was conducted on January 6, 2009. The AOP was entered into evidence in the
3
court record for the first time at this hearing. On February 17, 2009, the trial court
entered a five-page “decision and order regarding jurisdiction.” The court ruled that
Michigan had jurisdiction to hear the case because, by executing an AOP, the parents
“consent[ed] to the jurisdiction of Michigan specifically on the issues of custody, support
and parenting time.” Furthermore, because an AOP granted “initial custody” of a minor
to the mother, the judge reasoned that the “UCCJEA would not be invoked” because the
“grant of initial custody was already made by the parents who voluntarily invoked the
Acknowledgment of Parentage law.”1
Subsequently, a trial was held to determine custody. After taking testimony from
a number of witnesses, the trial court applied the best interest factors contained in MCL
722.23, awarding joint legal custody to both parties, and physical custody to the plaintiff.
Defendant was awarded parenting time, and a child support order was entered.
Defendant appealed the order of custody. On September 15, 2009, the Court of
Appeals affirmed the trial court’s exercise of jurisdiction, “albeit for a different reason.”2
The panel held that the trial court could properly exercise home-state jurisdiction under
1
On March 3, 2009, after the Michigan court held that Michigan had jurisdiction
over the case, the Illinois circuit court entered an order transferring the case to Michigan
and dismissing defendant’s Illinois case with prejudice. Subsequently, a motion was filed
to vacate that order. The Illinois court refused to vacate the order transferring the case to
Michigan, but did amend the previous order to indicate that the case would be “merely
taken off call” rather than dismissed with prejudice pending defendant’s Michigan
appeal.
2
Foster v Wolkowitz, unpublished opinion per curiam of the Court of Appeals,
issued September 15, 2009 (Docket No. 291825), at 1.
4
the UCCJEA because a properly executed AOP operated as an initial custody
determination as a matter of law. Because the Michigan AOP operated as an “initial
custody determination” under the UCCJEA, Michigan had continuing jurisdiction and it
was “not necessary to consider defendant’s argument that Illinois is the home state.”3
This Court granted leave to appeal, asking the parties to address whether the Court
of Appeals erred in relying on the Acknowledgment of Parentage Act rather than the
UCCJEA to determine that Michigan should exercise subject-matter jurisdiction, and, if
jurisdiction properly lies in Illinois as the child’s “home state” under the UCCJEA,
whether Michigan is the more convenient forum for resolution of this matter.4
STANDARD OF REVIEW
This case involves the requirements of the UCCJEA and the interplay between the
UCCJEA and the Acknowledgment of Parentage Act. Issues of statutory construction are
questions of law reviewed de novo.5 Additionally, in the absence of any factual dispute,
3
Id., unpub op at 7.
4
485 Mich 999 (2009). Given our resolution of this case, we find it unnecessary
to address defendant’s constitutional challenge to the Acknowledgment of Parentage Act.
5
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
5
whether Michigan may exercise home-state jurisdiction6 under the UCCJEA is a question
of law reviewed de novo.7
RELEVANT STATUTORY PROVISIONS
The Acknowledgment of Parentage Act, MCL 722.1001 et seq., provides a
voluntary means for both parents, acting together, to establish paternity of a child born
out of wedlock. An AOP is “valid and effective” when the unwed parents complete the
form, sign it, and have their signatures notarized.8 A validly executed AOP establishes
paternity and may provide the “basis for court ordered child support, custody, or
parenting time without further adjudication under the paternity act . . . .”9 The act further
provides that the AOP is to be filed with the State Registrar and kept “in a parentage
registry in the office of the state registrar.”10
6
Black’s Law Dictionary (8th ed) defines “home-state jurisdiction” as
“jurisdiction based on the child’s having been a resident of the state for at least six
consecutive months immediately before the commencement of the suit” where there is an
interstate child-custody dispute governed by the UCCJEA.
7
In re Petition by Wayne Co Treasurer, 478 Mich 1, 6; 732 NW2d 458 (2007);
Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559, 566; 640 NW2d 567 (2002);
Jodway v Kennametal, Inc, 207 Mich App 622, 632; 525 NW2d 883 (1994).
8
MCL 722.1003.
9
MCL 722.1004.
10
MCL 722.1005(1).
6
The Acknowledgment of Parentage Act further provides that when an AOP is
executed, “initial custody” is granted to the mother:11
After a mother and father sign an acknowledgment of parentage, the
mother has initial custody of the minor child, without prejudice to the
determination of either parent’s custodial rights, until otherwise
determined by the court or otherwise agreed upon by the parties in writing
and acknowledged by the court. This grant of initial custody to the mother
shall not, by itself, affect the rights of either parent in a proceeding to seek
a court order for custody or parenting time.[12]
Lastly, parents who execute an AOP agree to consent to the “general, personal
jurisdiction” of Michigan courts “regarding the issues of the support, custody, and
parenting time of the child.”13
The UCCJEA, MCL 722.1101 et seq., governs interstate child custody disputes.
At issue in this case is MCL 722.1201, which governs a state court’s authority to make an
“initial child-custody determination.”14 That provision states:
(1) Except as otherwise provided in section 204,[15] a court of this
state has jurisdiction to make an initial child-custody determination only in
the following situations:
11
MCL 722.1007(c) requires that the AOP form provide notice to the parties that
the mother has initial custody of the child. This is consistent with the AOP signed by the
parties in this case.
12
MCL 722.1006 (emphasis added).
13
MCL 722.1010 (emphasis added).
14
If a state court has jurisdiction to make an initial child-custody determination
under the UCCJEA, that court retains “exclusive, continuing jurisdiction” over the child
custody matter. MCL 722.1202(1) and 722.1203(a).
15
MCL 722.1204(1) permits a state to exercise “temporary emergency
jurisdiction” when a child has been abandoned or it is necessary to protect the child on an
emergency basis because the child, his siblings, or his parent is “subjected to or
7
(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 section 207 or 208, 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
section 207 or 208.
(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. [Emphasis added.]
The UCCJEA also defines statutory terms that are critical to our resolution of this
case. Of note, a “child-custody determination” is defined as “a judgment, decree, or
threatened with mistreatment or abuse.” The temporary emergency orders remain in
effect until an order is obtained from the state court having proper jurisdiction under the
UCCJEA.
8
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.”16 Additionally, the
child’s “home state” is defined as the state in which a child lived with a parent “for at
least 6 consecutive months immediately before the commencement of a child-custody
proceeding.”17
ANALYSIS
The Court of Appeals in this case held that an AOP, executed pursuant to the
Acknowledgment of Parentage Act, operated as an initial custody determination for the
purposes of the UCCJEA. It is true that the plain language of the Acknowledgment of
Parentage Act effectively conditions the parents’ ability to execute an AOP on their
willingness to allow the mother to be granted “initial custody of the minor child . . . .”18
While this grant of initial custody occurs by operation of law when the parties stipulate to
the child’s paternity, the statutory language also makes clear that the initial grant of
custody creates no impediment should either parent wish to seek a judicial determination
of custodial rights. MCL 722.1006 indicates that the grant of initial custody is “without
prejudice to the determination of either parent’s custodial rights” and that the grant of
16
MCL 722.1102(c) (emphasis added).
17
MCL 722.1102(g) (emphasis added).
18
MCL 722.1006.
9
initial custody “shall not, by itself, affect the rights of either parent in a proceeding to
seek a court order for custody or parenting time.” (Emphasis added.) Thus, nothing in
the plain language of the Acknowledgment of Parentage Act equates the execution of an
AOP to a judicial determination regarding custody; rather, the statutory language leads to
the opposite conclusion.19
Additionally, for the purposes of an interstate custody dispute, an AOP does not
satisfy the statutory definition of “child-custody determination” provided in the
UCCJEA, because the acknowledgment is not a “judgment, decree, or other court order
providing for legal custody, physical custody, or parenting time with respect to a child.”
MCL 722.1102(c) (emphasis added). An AOP is not issued or entered by any court, nor
is it in the form of a “judgment, decree, or other court order . . . .” Rather, the parental
stipulation is filed in the executive branch with the State Registrar and kept in a specific
parentage registry. The judicial branch has absolutely no involvement in the execution of
an AOP. Indeed, the involvement of the judicial branch occurs, if ever, only after the
AOP has been filed, as the acknowledgment serves as the “basis for court ordered child
support, custody, or parenting time without further adjudication under the paternity
19
Equating an AOP to a judicial determination would necessarily be prejudicial to
the father, even if the child custody dispute were purely intrastate. MCL 722.27(1)(c)
provides that a court cannot modify or amend previous orders so as to change the
established custodial environment of a child “unless there is presented clear and
convincing evidence that it is in the best interest of the child.” The father would bear a
heightened evidentiary burden when seeking to modify or amend the initial grant of
custody to the mother, despite the clear directive contained in MCL 722.1006 stating that
the filing of an AOP does not, by itself, “affect the rights of either parent in a proceeding
to seek a court order for custody or parenting time.” (Emphasis added.)
10
act . . . .”20 Simply put, the initial grant of custody to the mother required under the
Acknowledgment of Parentage Act is not an “initial child-custody determination” under
the UCCJEA, and the Court of Appeals erred by concluding otherwise.
It is true that the Acknowledgment of Parentage Act requires, as a condition of
executing an AOP, that parents consent “to the general, personal jurisdiction” of
Michigan courts regarding “the issues of the support, custody, and parenting time . . . .”21
However, jurisdiction over a person22 has never been synonymous with jurisdiction over
a case, and the parties’ consent to personal jurisdiction provides no support for the
conclusion that Michigan has home-state jurisdiction under the UCCJEA. The plain
language of the UCCJEA indicates that it provides “the exclusive jurisdictional basis for
making a child-custody determination.”23 Merely having personal jurisdiction over a
party or child is insufficient to make a child custody determination.24 Therefore, the
consent to personal jurisdiction required by the Acknowledgment of Parentage Act
provides no basis for Michigan to exert home-state jurisdiction pursuant to the UCCJEA.
20
MCL 722.1004.
21
MCL 722.1010.
22
Black’s Law Dictionary (8th ed) defines “personal jurisdiction” as a “court’s
power to bring a person into its adjudicative process.”
23
MCL 722.1201(2) (emphasis added).
24
“Physical presence of, or personal jurisdiction over, a party or a child is neither
necessary nor sufficient to make a child-custody determination.” MCL 722.1201(3)
(emphasis added).
11
The record reveals that the child’s home state for the purposes of the UCCJEA is
the state of Illinois, because that is the state in which the child resided “for at least 6
consecutive months immediately before the commencement of a child-custody
proceeding.”25 Plaintiff argues that, despite the fact that the state of Illinois has home-
state jurisdiction, the state of Michigan is a more convenient forum for the resolution of
the custody dispute. However, under the UCCJEA, it is the home state that must decide
whether to “decline to exercise its jurisdiction” because “it determines” that “it is an
inconvenient forum” and that “a court of another state is a more appropriate forum.”26
Thus, while plaintiff presents persuasive arguments supporting the conclusion that
Michigan is the more appropriate forum in which to resolve the interstate custody
dispute, these arguments are best directed to the Illinois court.
Finally, we take care to note that, pending resolution of the interstate child custody
dispute, the stipulation of the parties granting custody to the mother, as contained in the
AOP, remains intact.27 Additionally, the child support order, as well as the order
concerning parenting time, likewise remains intact.28
25
MCL 722.1102(g).
26
MCL 722.1207(1); 750 Ill Comp Stat 36/207(a).
27
The AOP signed by the parties specifically acknowledges that “[t]he mother has
custody of the child unless otherwise determined by the court or agreed by the parties in
writing.” (Emphasis added.)
28
The UCCJEA does not concern orders “relating to child support or other
monetary obligation of an individual.” MCL 722.1102(c). However, the Family Support
Act, MCL 552.451 et seq., specifically permits a custodial parent to petition the circuit
court for support “to provide necessary shelter, food, care, and clothing for the
12
CONCLUSION
The Court of Appeals erred by concluding that the presumptive award of custody
given to a mother when an AOP is executed pursuant to the Acknowledgment of
Parentage Act serves as an “initial custody determination” under the UCCJEA. We
therefore reverse the judgment of the Court of Appeals and remand this matter to the
Monroe Circuit Court for further proceedings consistent with this opinion.
KELLY, C.J., and CAVANAGH, WEAVER, CORRIGAN, MARKMAN, and HATHAWAY,
JJ., concurred with YOUNG, J.
child . . . .” MCL 552.451 and 552.451a. Where there is a dispute regarding custody, the
judge is required to issue “specific temporary provisions” concerning custody and
parenting time pending resolution of the custody dispute. MCL 552.452(4).
13