Ohiogal, LdiJ, need advice for unmarried parent custody

[LdiJ]

Doreen, or Ohiogal...which one is the family law attorney...hrmmmm

I think that OG missed that mom and the child had been in IN for more than 6 months.

 

[Ohiogal]

I think that OG missed that mom and the child had been in IN for more than 6 months.

I think YOU miss the intricacies of the law and specific wording matters.

 

[Ohiogal]

Indiana's law:

§ 31-21-2-8. "Home state"


"Home state" means the state in which a child lived with:

(1) a parent; or

(2) a person acting as a parent;
for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six (6) months of age, the term means the state in which the child lived since birth with a parent or person acting as a parent. A period of temporary absence of the parent or person acting as a parent is part of the period.

If mom is in Michigan for a month prior to dad filing in Indiana, the six months IMMEDIATELY prior to the filing is no longer met as being in Indiana. That would then mean that Indiana is NOT the home state of the child. Hence that would mean the child has no home state. That is based on the actual specific wording of the statute in Indiana.

Therefore you look at Michigan's law where mom and the child would be:

(1) Except as otherwise provided in section 204, a court of this state has jurisdiction to make an initial child-custody determination only in the following situations:
(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).

The wording is slightly different between the two states but Indiana's current statute requires the six months IMMEDIATELY PRECEDING. Michigan's law does not. It is therefore possible under Michigan's statute that mom could file there prior to six months elapsing.

It is a very intricate argument but it is an argument that has been made and won.

 

[Doreen]

States adopted a "Uniform" law, which the Uniform Child Custody Jurisdiction and Enforcement Act is, to resolve jurisdictional disputes between states. There is NO SUBSTANTIVE DIFFERENCE in the wording of the UCCJEA laws between Michigan and Indiana or any other state, including the definitions of "Home State" or the state with a right to make an "Initial Custody Determination".

...As plaintiffs concede, the Michigan court correctly determined that Michigan was not the child's home state on the date of the commencement of the Michigan proceeding, nor had Michigan been the child's home state within six months before the commencement of the proceeding. The Michigan proceeding was commenced on August 22, 2007, when plaintiffs filed a complaint in the Michigan court. The child lived in Texas from the time she was born on August 3, 2006, until May 20, 2007, when she moved to Michigan with her father. Accordingly, Texas was the child's home state. MCL 722.1201(1)(a). When the Michigan proceeding was commenced, the child had only lived in Michigan for approximately three months and had not lived in Michigan previously.

Nash v. Salter, 760 N.W.2d 612 (Mich. Ct. App. 2008)
https://www.courtlistener.com/michctapp/9tFN/nash-v-salter/

INDIANA UCCJEA

http://www.lrcvaw.org/laws/INUCCJEA.pdf
Indiana UCCJEA
Ind. Code Ann. 31-21

Chapter 2. Definitions
Sec. 8. "Home state" means the state in which a child lived with:
(1) a parent; or
(2) a person acting as a parent;
for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six (6) months of age, the term means the state in which the child lived since birth with a parent or person acting as a parent. A period of temporary absence of the parent or person acting as a parent is part of the period.

Chapter 5. Jurisdiction
Sec. 1. (a) Except as otherwise provided in section 4 of this chapter, an Indiana court has jurisdiction to make an initial child custody determination only if one (1) of the following applies:
(1) Indiana 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 six (6) months before the commencement of the proceeding, and the child is absent from Indiana but a parent or person acting as a parent continues to live in Indiana.
(2) A court of another state does not have jurisdiction under subdivision (1) or a court of the
home state of the child has declined to exercise jurisdiction on the ground that Indiana is the more appropriate forum under section 8 or 9 of this chapter, and...

MICHIGAN UCCJEA

http://www.lrcvaw.org/laws/miuccjea.pdf
Michigan UCCJEA
Mich. Comp. Laws 722.1101 et seq
722.1102. Definitions.
(g) "Home state" means 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. In the case of a child less than 6 months of age, the term means the state in which the child lived from birth with a parent or person acting as a parent. A period of temporary absence of a parent or person acting as a parent is included as part of the period.

722.1201. Initial child-custody determination; jurisdiction.
Sec. 201. (1) Except as otherwise provided in section 204, a court of this state has jurisdiction to make an initial child-custody determination only in the following situations:
(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...

HOME STATE JURISDICTION*

https://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf
HOME STATE JURISDICTION
The UCCJEA gives home State bjurisdiction priority in initial child-custody proceedings. In doing so, the Act conforms to the PKPA and rejects the UCCJAs coequal treatment of home State and significant connection jurisdiction. Only in cases in which a child has no home State or the home State declines jurisdiction may another court exercise significant connection jurisdiction. This change is intended to significantly reduce the number of situations in which more than one State has jurisdiction over a child-custody matter. In turn, the incidence of conflicting custody orders being issued by courts in different States should also decrease.

Under the UCCJEA, a court has home State jurisdiction if it is located in the childs home State (as of the date proceedings are commenced) or if it is located in the State that was the childs home State within 6 months of the proceedings commencement and the child's parent (or a person acting as his or her parent) continues to live in the State even after the child has been removed. This extended home State rule allows a left-behind parent to commence a custody proceeding within 6 months of a childs removal from the home State.

Example. A 2-year-old child, born and raised in Minnesota, is abducted by his mother before either parent has filed for custody. The boy and his mother move to Idaho. The left-behind father may file for an initial custody determination in Minnesota (which has home State jurisdiction) within 6 months of the childs removal. The child's absence from Minnesota does not deprive the State of jurisdiction. If the mother commences a custody proceeding in Idaho while Minnesota is the childs home State under the UCCJEA, the father can seek dismissal of the Idaho proceed- ing based on lack of jurisdiction. Assuming the notice requirements of section 108 are met, any order the father obtains in Minnesota is entitled to enforcement in Idaho.

In Foster v. Wolkowitz, a Michigan trial court did play fast and loose with the UCCJEA on an argument that an AOP was an "initial custody determination", appeals court agreed with trial court, and the Michigan Supreme Court disagreed with both lower courts
http://caselaw.findlaw.com/mi-supreme-court/1530278.html

 

[Ohiogal]

States adopted a "Uniform" law, which the Uniform Child Custody Jurisdiction and Enforcement Act is, to resolve jurisdictional disputes between states. There is NO SUBSTANTIVE DIFFERENCE in the wording of the UCCJEA laws between Michigan and Indiana or any other state, including the definitions of "Home State" or the state with a right to make an "Initial Custody Determination".

Nash v. Salter, 760 N.W.2d 612 (Mich. Ct. App. 2008)
https://www.courtlistener.com/michctapp/9tFN/nash-v-salter/

INDIANA UCCJEA


MICHIGAN UCCJEA


HOME STATE JURISDICTION*


In Foster v. Wolkowitz, a Michigan trial court did play fast and loose with the UCCJEA on an argument that an AOP was an "initial custody determination", appeals court agreed with trial court, and the Michigan Supreme Court disagreed with both lower courts
http://caselaw.findlaw.com/mi-supreme-court/1530278.html

You can't read. I already explained the difference. Where are you licensed to practice? How many COA cases have you won? You also did NOT post the actual statute from Michigan which I did. That statute I posted is the EXACT wording. In addition this would be an initial custody determination if there has not been any other court orders.

 

[kidoday]

Oh wow, I get busy and come back to find great answers. Thank you, Ohiogal, this gives my daughter a place to start and hopefully get some parenting time set up so the bickering can settle down.

 

[kidoday]

At this point a Michigan attorney, at least one that she has checked with, does not believe she can file temporary orders in Michigan under the UCCJA. She will be checking with an Indiana attorney, but I don't believe she can file there either since she is no longer residing in the state. She remains, however, a legal resident their. I truly don't know.

To CJane according the the Michigan Affidavit of Parentage, she has initial custody, the want to rush is to get parenting time established until an actual court order can be established. They initially agreed on parenting time, and now the father isn't agreeing to any of it.

 

[kidoday]

As I suspected, the Indiana attorney didn't believe the Judge will allow my daughter to file in Indiana due to the fact she is now living in Michigan. The attorney said, he could file, but believed the case would be dismissed.

Therefore, as I see it, the child no longer has a home state.

 

[Ohiogal]

Look at what I posted under (1)(d).

(1) Except as otherwise provided in section 204, a court of this state has jurisdiction to make an initial child-custody determination only in the following situations:
(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).

 

[kidoday]

Thank you, Ohiogal. As I have read your previous postings, I also believe she can file in Michigan. Now to find an attorney that will do so.