"HOME STATE" PRIORITY UNDER THE UCCJEA

The UCCJEA governs the procedures for resolving child custody disputes when one or both parents reside outside of Michigan. It also governs enforcement of out-of-state custody decrees in Michigan and sets forth the circumstances under which modification of a foreign court order is permitted. The UCCJEA gives jurisdictional priority and exclusive, continuing jurisdiction to the home state of the child as defined in the act.

The UCCJEA imposes specific pleading requirements. Each party in a child custody proceeding must, in its first pleading or in an attached sworn statement, provide information under oath about the child’s present address, the places the child has lived during the last five years, the names and present addresses of the persons with whom the child has lived during that period, and the existence of other child custody proceedings. MCL 722.1209(1). See SCAO form MC 416, Uniform Child Custody Jurisdiction Enforcement Act Affidavit. If a party alleges that a party’s or child’s health, safety, or liberty would be put at risk by the disclosure of identifying information, the court will seal and not disclose that information to the other party or the public unless the court orders the disclosure after a hearing. MCL 722.1209(5).

Under the UCCJEA, a Michigan court has jurisdiction to make an initial child custody determination under the following conditions:

(a) [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 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 there custody of the child under section 207 or 208.

(d) No court of another state would have jurisdiction under subdivision (a), (b), or (c).

UNDERSTANDING THE UNIFORM INTERSTATE FAMILY SUPPORT ACT - How to get your support from one state to the next.

In 1996, Congress required all states to enact the UIFSA. In Michigan, UIFSA is now in the statute books as MCL 552.1101 – 552.1901.

Under the old laws, two or more states might issue conflicting support orders for the same support payer and children. That made it hard to know

• how much support was owed,

• to whom the support was owed, and

• which state should collect it.

UIFSA can best be described as one order, at one time, in one place for each combination of payer and child. This means that only a single state at a time may issue an order. The state that issues the original order holds what UIFSA calls “Continuing, Exclusive Jurisdiction” (CEJ) of the order. CEJ can be lost (transferred) to another state if circumstances allow it.

The following definitions will help you understand howUIFSA works.

Continuing, Exclusive Jurisdiction (CEJ) – A state thatissues a support order consistent with that state’s law is the only state that can change this order as long as one of the parties or the child lives there.

Controlling Order – If there is more than one order, the controlling order is the support order that has priority over any other order.

Current Support - The amount of money that has been ordered to be paid on a regular basis for the care of a child. Current support may include dollar amounts for child care, health care, court costs, and fees.

Party - The case’s plaintiff or defendant. Parties are almost always a child’s parents. Occasionally a court may recognize other people and agencies as parties to a case.

Moving Party - The party or state that asks a court to order something.

Past-due Support - Support money that was owed but not paid in the past and is still owed.

Registering Party - A party who seeks to register an order in another state.

Registration - The process for having an order from one state recognized and enforced by another state.

Support Order - A court’s order to pay child or spousal support. Also called a “judgment,” “decree,” or simply “order.”

No Support Order Yet?

If no court has issued a support order, a support order can be established in Michigan. If the parents or children involved meet some specific requirements (for example, they have sufficient “contacts” with this state), a Michigan court then may be able to enter an order to determine paternity or to order support without help from another state. If another state’s help is needed, UIFSA has rules  that allow two states to work together to establish a support order.

Controlling Order

Before UIFSA, if parties moved to different states, a court in a party’s new state often would issue a new support order. Differing orders for the same payer and children led to confusion and disagreements between states and between parties. Now all state courts follow UIFSA’s rules to determine the order that has priority and the state courts that have the power to change the order. This is where CEJ comes in. The state that is determined to have CEJ is the only state that can change the support order.

Enforcement

When one state enters an order requiring a person in a different state to pay support, the state that entered the order can use its laws to collect the support. The state that entered the order may also register the order for  enforcement only in the other state. The other state cannot change the support order, but uses its laws to collect the support as if it had entered the order.

Modification

Under UIFSA, several factors are used to help decide which state may change the order. If either of the parties or any of their children still lives in the state that issued the controlling order, only that state’s courts may change the support amount. If neither party nor any of their children still live in the state that issued the controlling order, that state cannot modify the support order.

UIFSA allows both parties to agree in writing that a state where one of them lives may take control of the case and change the support amount. Otherwise the party who wants to change the order must register the order for modification in the state where the other party lives. Once a new state modifies an order, the original state loses its CEJ and the new state then has acquired CEJ.

Once a state changes another state’s order, it must begin collecting the current support. Other states that previously issued orders may not continue to charge current support, but they may collect past-due support and enforce other provisions that were unmet in their previous orders.

Registering Orders

An order issued in one state must be registered in another state (the “responding state”) before that second state can enforce or modify the order. A responding state enforces registered support orders issued in another state exactly as it would enforce orders issued by its own courts. The registration process starts when the state that issued the order sends copies of the order and related documents to the responding state’s UIFSA agency. When the documents arrive, the responding state will file them with the correct local office. That office then sends copies of the documents and a UIFSA notice to the other party in the case.

The other party has 20 days to object to the order being registered. This is the only opportunity to object. If the  non-registering party does not object within 20 days, the order will be registered. If the non-registering party does file a timely and proper

objection with the local UIFSA agency, that agency will schedule a hearing and send both parties a notice detailing the date, time, and place of the hearing.

Where to Get UIFSA Assistance in Michigan

A directory of local Friend of the Court offices can be found at: http://courts.michigan.gov/scao/services/dirs/cofoc.asp

TIPS FOR TRAVELING DURING PARENTING TIME

Imagine this: You have your suitcases packed and your kids waiting in your care. At long last, it’s time for your vacation. You’ve planned and saved for months, and things seem to be going your way. It’s been a long winter, a bad year with your divorce, and it’s finally time to relax. That is, until you get a call from your ex, or, worse, an attorney or the police, claiming that you cannot go anywhere with those kids. What are you to do?

Well, if you are like most newly divorced, this scenario is a legitimate fear, and, what’s worse, for all too many of you a stark reality.  Like it or not, when you are divorced, your divorce decree governs not only when you see your kids, but where you go, and whether you can travel at all, when they are with you. 

This does not mean, however, that each of you has a be-all/end-all veto over the other’s travel plans. If that were the case, ex-spouses would use it out of spite with no recourse from the court.

It does mean, however, that if you do not take certain necessary steps now, you could very well find yourself unable to travel when and where you want- even during your own parenting time. Here are your necessary minimum steps:

Court Order – The best way to preserve your travel plans is to put them directly into your order. Be specific with dates, locations, whether third parties can attend (friends, family, significant others, and so forth), when and how you can each contact the kids (text, phone, Skype), emergency contacts, hotel locations, and whose plans “trump” if you each select the same days for vacations. Also be specific that providing this information does not authorize your ex, and vice versa, to stalk or otherwise interfere with your trip, such as “happening” to be on the same flight for her own trip once she has the date and time of your flight. Rather, the reason you are providing these details to each other is to allow both of you to be reasonably informed of where your kids will be at all times.

Negotiated Plans – If you do not have travel plans specified in your order, do not despair – instead, negotiate them, and put them in writing, reasonably in advance of your intended trip.  Expect that whatever you request your ex will also request, such as each of you having one week’s vacation or permission to travel out of the country. If your court permits, make those plans an amendment to your order, and file them with the court so that they are enforceable just like your original order. As always, consult with an attorney in your area so that you understand just what you are getting into with an amendment, whether and how to change it (if you can) and what specific language you need to include to make it binding.

Passports – Do not wait for the last minute if you need passports – you may find yourself negotiating with your ex for permission or filing an emergency motion with your court if she refuses. The federal Two Parent Consent Law, Pub L No 106-113, § 236, 113 State 1501 (1999), regulates passport applications for minors. A “minor” is an unmarried person under age eighteen. 22 CFR 51.27. Minors age sixteen and older may sign their own application, or their parents or individuals in loco parentis (authority like parents, such as guardians) may apply for them. To apply for a passport for a minor under age sixteen, however, both parents must consent, in writing or the applying parent must provide documentation showing his or her sole authority to obtain the passport. This “sole authority” may be in a sole legal custody order, an order giving the parent permission to travel with the child, an order terminating parental rights, or a notarized statement that the other parent consents or is unavailable to consent. “Unavailable” does not mean merely unreachable (e.g., your ex did not answer the telephone last night) but physically unavailable (e.g., your ex fled to Vegas five years ago, you have not heard from her since and she is listed as a missing person). The Secretary of State may also issue a passport “for compelling humanitarian reasons related to the welfare of the child,” such as may occur when parent and child leave a batterer. See generally, 22 CFR 51.27 and related regulations.

You can avoid these last-minute plans by sating in your order who will hold the passports (maybe you alternate, or you each hold one if you have more than one kid, etc.)

Bonds – If you are afraid that your ex will flee, or your ex accuses you of being likely to do so, then consider a bond. A bond is, essentially, money the travelling parent “fronts” and puts into escrow to cover the other parent’s costs in the event that parent has to retrieve the kids, hire a lawyer to return them, track you down, etc. If fleeing is a serious concern, however, we encourage you to reconsider the prospect of traveling, as it is costly and difficult to retrieve a child once the child reaches certain countries – and, in some, impossible. By comparison, if a sum of money will comfort your ex so that you can engage in legitimate travel and enjoy your time, knowing you ill return, then you might consider it money well put up, especially when you get it back upon your return.

State Laws – Be cognizant, despite these options, of your state’s laws. Some states specifically preclude parents from traveling to certain countries without the other’s consent, put distance limits on travel or require unique procedures for check in / check out with your ex, or the court, or both, phone contact, providing emergency contact information, and so forth.

Whatever you do, do not ignore these steps while you plan for your trip. If you do, you might very well find that your dream of relaxing in the sun with your kids disappears in the icy cold stare of your ex refusing to let you go.

PICK YOUR PLAYING FIELD WISELY: WHERE TO FILE FOR DIVORCE

During the divorce process, the home field does not always have the advantage. Admittedly, if you file in your home state, you minimize your travel costs and maximize the chances that someone knows, and can give you insight, on your attorney, your wife’s attorney, your judge and your court officers. Less cost and more familiarity are obvious advantages.

But, what if your home state is the proverbial outdoor stadium in the middle of a blizzard? It could be, compared to your options. Believe it or not, you may be able to file someplace else and, by doing so, maximize your chances for a favorable outcome in your divorce. 

There are two concepts that interplay when picking a place to file for divorce. The first, most basic, is subject matter jurisdiction. Subject matter jurisdiction refers to the court’s reach (that is, jurisdiction) over the topic (that is, subject) of your case. In other words, you must file your case in a court that handles divorces. (This also explains why your wife cannot file in probate court where her friends work or small claims court where her friend got a good result in another lawsuit.)

The second, and more important for you, is personal jurisdiction. Personal jurisdiction refers to the court’s reach (again, jurisdiction) over the litigants (you and your wife). Generally, one of you must reside in the state for the court to have personal jurisdiction – but, believe it or not, not both of you.  If you and your wife reside in separate states, or, in some states, counties, where you file can make or break your case.  Given options for filing, what should you do? Ask these questions:

What is the residency requirement?

Except for a handful of states, one or both of you must reside in the state before filing. If you have recently moved or are in a hurry to get a divorce, be sure to check your state’s residency requirements. These are:

None – Alaska, South Dakota, Washington

6 weeks - Nevada

60 days – Arkansas, Colorado, Kansas, Wyoming

90 days – Arizona, Missouri, Montana, Utah

180 days or 6 months – Alabama, California, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Indiana, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Vermont, Virginia, Wisconsin

1 year – Connecticut, Iowa, Maryland, Massachusetts, Nebraska, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, West Virginia

You do not have to file where your wife resides – rather, generally, it takes only one of you to reside in the state.

In many of these states, the residency requirement is mandatory, and, without it, the court also does not have subject matter jurisdiction over your case. This means,  if you or your wife have not resided in the state long enough but lie about it, the divorce is void from the outset, and you will remain married regardless of a divorce decree saying the contrary.

What is the waiting period?

After you have narrowed down your states, look to waiting periods. In many states, the court will require a period of time, typically called a waiting period, between the date you file for divorce and the date the court will grant one. This time is not devoted to waiting – rather, this is the time to work on settlement or prepare for trial, if not reconciliation. Some states have very long waiting periods (a year or more), whereas others have shorter (6 months) or none. If you are looking to complete the divorce quickly, chose the later, to reconcile, the former.

If we have children, where do they reside?

Irrespective of where you and your wife reside, if you have children, where they reside will determine where the child custody portions of your case occur. Generally, and except for very narrow exceptions for domestic violence and emergencies, the court in the state where the child has resided for at least six months or since birth, whichever is shorter, is the only court that can decide child custody issues. The idea here, under a uniform act called the Uniform Child Custody Jurisdiction and Enforcement Act, is to prevent parents from fleeing from one state to another in an effort to keep the child from the other parent, achieve a more favorable outcome, or both.

It is possible, although not always practical, to divide your divorce so that the property division and alimony portions occur in one state, whereas the child-related potions occur in another.  Some parents find themselves in this position out of necessity (for example, when one parent files for divorce after abandoning the family, and the other is left with the children and in need of custody and child support orders). If this is you, then you should talk with a family law attorney ASAP to weigh the costs of bifurcation against its benefits. A firm with offices nationwide, like those of us working in the Primerus network of law firms, should be able to give you valuable information about the divorce process in both states or recommend someone to you who can.

Where are our assets located?

If your immobile assets are located in one state, then, typically, that is the state that must grant your divorce. In an era of internet banking and renting, this is limited mostly to real estate, and, then, only if the spouse who does not file for divorce also chooses not to participate in the process. In other words, if you own a home with your wife in State A and you, correctly, file for divorce in State B but she chooses not too participate, then your judge may not be able to award the home in State A to either of you. Rather, you would have to file a subsequent lawsuit, post-divorce, to divide the home in State A.

Even if real estate is not in-issue, you should consider filing in the State where your assets are located. You can keep better watch over them (things tend to “go missing” during a divorce) and can have a better, personal feel for the market if you and your wife dispute appraisals.

Do we have any special considerations in our case?

Finally, feel out how the states you are considering handle any special aspects of your case. If you anticipate defending against an alimony claim, select the state with the shortest alimony lengths, whether by statute or case law. If you are making one, choose the state with broader standards and no caps. If you own an asset from prior to your marriage that you want to protect, then opt for the state with the stricter standards for invading separate property. If you have military disability benefits and prefer not to share them, then choose the state that cannot divide them. If you want to maximize the duration of child support, then select the state with the longer period of coverage (such as to college) than one that terminates child support at age 18 or graduation from high school. And so forth.

If you are faced with multiple states in which you could file, sit down with a family law attorney to discuss the pros and cons in each state, both financial and legal. You may very well find that the playing field, for any of these reasons, is better on the other side.