Refuse to Return Children

[futuredust]

What is the name of your state (only U.S. law)? MI

I am asking this for a friend of the family.

Mom left dad and kids in AR- waited five years and filed for divorce in MI. Minimal contact with the children during those five years. Children are 13-12 and 9 now.

While in court for the divorce, the dad asked the judge, "What happens if she does not return the kids".. judge said then you contact your lawyer. Judge also stated that any future custody disputes would have to be filed in AR, where the children reside.

Mom called dad this year near the end of her 6 weeks and asked if they could stay a couple weeks longer, dad said yes they can.

Mom called dad yesterday and said she is not returning the children and that she appealed the courts decision and he would get his papers on Monday. Then said she is returning the youngest, but not the others.

Mom sent a text today telling dad he should have been in court the day she went over custody if he wanted rights. Inferring she has been to court since the last court order. This is the first he has heard of this, never served or anything.. not even sure she is being honest about it either.

Court order for divorce dated June 2008-

custody/jurisdiction

Names of children and dates of birth- all children of this marriage. Court acknowledges it does not have jurisdiction of these children since they have lived in Arkansas for several years, and still reside there.

Parenting time.

Parties have agreed to allow six weeks of parenting time with plaintiff (mom) every summer.

Then later in the agreement it says that court maintains jurisdiction to enforce this order and should either party cause legal action the one found in default will be held responsible for all legal and attorney fees incurred.

I told him to contact the courts first thing tomorrow to see if there is in fact a custody order for his children there.

Where does he go after that, does he file here for contempt, does he file in MI. Does he need to file an ex-parte for the return of the children with a motion to show cause?

School starts the 19th- children have attended school here all their life.

 

[Ohiogal]

He would have to enforce the order in MI and then file to have it taken over in AR if that is even possible. Here is the problem -- he consented to MI having jurisdiction over the children when he allowed ANY agreements regarding vistiation to be placed in the order.

 

[futuredust]

Even though it says that the court does not have jurisdiction, in the order.

So what does he need to do, file for a pick up order, in Michigan?

He is a mess and has not the first clue where to begin or which state. Neither do I, since it says in the order that Michigan does not have jurisdiction and he never filed anything in AR either.

All he has is the divorce order which states the children live in AR and that the parents came to the mutual agreement to let mom have six weeks in the summer.

 

[LdiJ]

Even though it says that the court does not have jurisdiction, in the order.

So what does he need to do, file for a pick up order, in Michigan?

He is a mess and has not the first clue where to begin or which state. Neither do I, since it says in the order that Michigan does not have jurisdiction and he never filed anything in AR either.

All he has is the divorce order which states the children live in AR and that the parents came to the mutual agreement to let mom have six weeks in the summer.

The very first thing he should do is find out if mom actually filed something and got an order. He can find that out by contacting the courts and asking for a copy of the file...or, by contacting his attorney and having his attorney do that.

What he needs to do from there depends on whether or not mom actually got something ordered. So its critical that he find that out as soon as possible. If it were me, I would be traveling to MI and going straight to the courthouse to look at the file, and then I would stay there until I could get something filed myself...either a pickup order or an order to vacate whatever order mom got, PLUS a pickup order.

Dad made a mistake allowing MI to rule about anything regarding the children. MI had no jurisdiction to do so, which the judge basically recognized.

 

[futuredust]

Can any of those be filed as an emergency ex parte?

From my understanding courts in MI are pretty backlogged, I cannot fathom how she even got any kind of order over the short period of time the children have been there... and without service to dad.

She claims she went to court, but is going to return one child. How could she have possibly gotten a court order for two of the three without service unless she forged his name?

 

[LdiJ]

Can any of those be filed as an emergency ex parte?

From my understanding courts in MI are pretty backlogged, I cannot fathom how she even got any kind of order over the short period of time the children have been there... and without service to dad.

She claims she went to court, but is going to return one child. How could she have possibly gotten a court order for two of the three without service unless she forged his name?

Yes, emergency orders can be filed...I wish Tinkerbella was posting because she recently had to do something similar in MI.

However, its honestly critical that dad get copies of what was filed and what was ordered (if anything)

If the original order was from a magistrate, she could have filed an appeal to the sitting judge and gotten a ruling that fast. If she served dad's attorney and dad ignored correspondence from his attorney (perhaps because he couldn't afford to pay him the balance due) that could factor in.

All of that is very unlikely but still possible in MI.

However, I can tell you with certainly that if he goes to the courthouse in MI and discovers that nothing was filed or ruled upon, that he can immediately file an emergency motion for a pickup order, get it that same day, and then go to mom's house with the police and get his children.

I know many MI parents who have done that...and one of our regulars here did it herself as well.

 

[futuredust]

Dad found out that she filed for custody in Michigan, court date is Aug 10th. He is headed that way tomorrow.

The atty he had, said there is nothing he can do.. and dad does not have time to atty shop. Or the money, quite honestly, this is a very poor family.

I told him to be in court and that he needs to present to the court and ask it to be dismissed since that state does not have jurisdiction and to have the kids past and current school enrollment on hand. And to also have his divorce papers from last year that say Michigan does not have jurisdiction and this was an agreed between parties visitation. Then to ask the judge to order his children returned that day.

He got a letter in the mail yesterday, from her, telling him that court is on the 10th.

Is there anything else he needs to do?

 

[TinkerBelleLuvr]

What county is this happening in?

 

[TinkerBelleLuvr]

What is Modification of Custody?
Modification of custody occurs when the Court, based upon a motion by one of the parties, believes that it is in the child’s best interests to alter in some way the existing custodial order. Examples of such changes are as follows;
Changing the home of the child from that of the custodial parent to that of the home of the non-custodial parent.
Changing sole custody to joint legal or joint physical custody, or vice versa.

What are the factors the Court will consider at the Modification hearing in deciding whether the custody of a child should be changed?
Child Custody Factors under the Child Custody Act
The court will look at the normal factors under the Child Custody Act. More information about determination of child custody in Michigan can be found in other articles on this website such as Child Custody in Michigan - Initial Determination and Michigan Child Custody Basics. As always, the best interests of the child are the driving considerations.
Special Inquiry
The Court will also evaluate if there has been a significant change in the circumstances regarding the care of the children, and if the children have consistently remained in the initial home of the custodial parent, or in other words, if a custodial home has been established since the initial custody order went into effect. Please refer to Paragraphs 3-5 below for further discussion of these factors.
It should be noted that the courts believe based upon child psychologist and social science experts that it is often disruptive and harmful for children to be moved from the comfort of the home where they have been living for some time. This is so even if it appears that the parent wishing to change the custody has a good home and would be a good custodial parent, or even a better one, and has improved his or her situation since the initial custody order. In effect, the Court, before deciding to change custody, will need to be convinced that the children are not being cared for properly; otherwise, the courts will be reluctant to make a change.

What are the unique questions or factors the Court will want to examine in deciding whether custody should change?
Has there been a substantial or significant change in circumstances regarding the care of the children since the previous order of custody?

The new facts showing such a change in circumstances must be significant, substantial, or serious, as compared to relatively minor changes. Examples of these serious factors could be as follows:
neglect by the custodial parent
third parties living in the custodial home who because of their own situation are detrimental to the child living there
misuse of alcohol consumption or drugs in the home.
physical or mental impairments that may have developed by the custodial parent which have an impact on parenting skills
leaving the children unattended
failing to attend to the medical care of the children
failing to attend to the educational needs of the children
immoral activities occurring in the home. (Here it should be noted that the custodial parent’s living with a person of the opposite sex may or may not be significant)
child’s preference. Here, the weight and importance of this factor depends upon the age of the child. The older the child, the more weight is given to this factor. .
any other substantial or significant new set of facts
Sometimes it is said that, in effect, the party wishing a change, needs to show that the other parent, who has had custody, has in some significant way “fumbled the ball” in the providing of the care for the child.
Whether or not since the initial custody order an “established custodial environment” has developed in the home of the existing custodial parent.
When this has occurred, and it usually has, the petitioning party has a more difficult task in convincing the court to change custody. After time has gone by, the custodial parent then has more often than not acquired an “established custodial environment” for the children. In that home, the children usually acquire comfort and familiarity that the court does not want to disrupt.
On the other hand, if in fact the children have not, for various reasons, consistently lived in the home of the parent who was awarded custody originally, then that parent cannot be said to have developed an “established custodial environment”. In this event, the petitioning party has an easier job to be successful in convincing the court.
A clear example where a custodial parent may lose his or her “established custodial environment” is when the children began living regularly, or even from time to time, in another home, such as the other parent’s, the grandparents’, or another relative’s. .In effect then the children did not acquire a true “home” with the custodial parent, or, if so, later had another “home” or “homes”

Since the court is examining the custodial parent’s home to see whether or not custody should change, is an inquiry also made of the non custodial parent and his or her home?
Yes. The court will also examine the non custodial parent’s situation and all of the facts and circumstances bearing on where the child should be.
The court will always look at the total situation, not just the custodial parent’s, and will need to compare the two parents. The court will want to see how the non custodial parent compares to the custodial parent according to the factors contained in the Child Custody Act. In effect that parent’s home, employment, stability, contacts with the child in terms of how he or she exercised parenting time, health, etc, is also reviewed.

What is the kind, or quality, of legal proof that needs to be presented by the parent wishing to change custody in a Modification of Custody proceeding?
The quality of proof necessary at this kind of proceeding is higher than it was at the time of the divorce. Now it must be “clear and convincing”. At the earlier hearing it just needed to be enough to merely “outweigh” the proof presented by the other parent. The burden on the petitioning parent is so high because of the concern of the court for not wanting to disrupt the home, unless necessary.

http://www.michiganlegalaid.org/library_client/resource.2005-05-29.1117417920074/html_view

 

[futuredust]

Gennesee county.