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Hernandez v. Mayoral-Martinez

Court of Appeals of Michigan

July 23, 2019


          Kent Circuit Court LC No. 18-009990-DC

          Before: Sawyer, P.J., and Borrello and Shapiro, JJ.

          Shapiro, J.

         Plaintiff-father appeals the circuit court's order dismissing this case for lack of subject-matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. The court's ruling was based on its conclusion that Mexico was the minor child's "home state." However, in this case the child did not have a home state as that term is defined by the UCCJEA. Accordingly, we reverse and remand to the circuit court so that it may fully consider whether it has jurisdiction under the UCCJEA.

         I. BACKGROUND

         The parties never married but were in a romantic relationship for several years. In June 2016, defendant-mother gave birth to a daughter in Michigan. The next day plaintiff signed an affidavit of parentage, which granted defendant "initial custody" of the child. MCL 722.1006. The parties' relationship ended sometime after the child's birth. In May 2017, defendant went with the child to Mexico to visit relatives. According to plaintiff, in November 2017 defendant returned to Michigan without the child. The circuit court found that the child has been living with the maternal grandmother in Mexico since May 23, 2017.

         In November 2018, plaintiff filed a complaint for custody and requested that the circuit court order the child's return to Michigan. He asserted that the court had subject-matter jurisdiction under the UCCJEA. Defendant appeared pro per for the hearing and said that she took the child to Mexico to keep her from plaintiff. Defendant considered plaintiff "a threat" to her and the child. The court found that Michigan was the child's home state under the UCCJEA and ordered defendant to arrange for the child's return to Michigan.

         Defendant obtained counsel and moved the circuit court to vacate its prior order. Defendant argued that Mexico, not Michigan, had home-state jurisdiction because the child had been living there since May 2017. Defendant asserted that the maternal grandmother had initiated a "custody action" in Mexico, but also referred to that matter as a "guardianship proceeding[]." Defendant argued that the Mexico court would likely find jurisdiction over the child and asked the circuit court to defer to those proceedings.

         A hearing on defendant's motion was held in December 2018. Both parties presented arguments regarding jurisdiction under the UCCJEA. The circuit court now found that Mexico was the child's home state. The court also found that there was no indication that Mexico has declined jurisdiction or is likely to do so. Accordingly, the court vacated its prior orders and dismissed the case for a lack of subject-matter jurisdiction.

         II. ANALYSIS

         Plaintiff argues that the circuit court erred in determining that it lacked jurisdiction under the UCCJEA. We agree with plaintiff that the court erred in finding that Mexico was the child's home state. As will be discussed, that ruling was erroneous because the child had not been living in Mexico with "a person acting as parent" as that phrase is defined by the UCCJEA. Given its ruling, the circuit court did not fully consider the UCCJEA's other jurisdictional bases. Accordingly, we reverse the court's order and remand so that the court can decide whether it has jurisdiction under the provisions that apply when no state falls within the definition of home state.[1]

         The UCCJEA governs child-custody proceedings involving Michigan and a proceeding or party outside of the state. Cheesman v. Williams, 311 Mich.App. 147, 150-151; 874 N.W.2d 385');">874 N.W.2d 385 (2015). The Act treats foreign countries as another "state" for jurisdictional purposes. MCL 722.1105(1). Section 201 of the UCCJEA explains when a court has jurisdiction to make an "initial custody determination." MCL 722.1201. The primary jurisdictional basis is MCL 722.1201(1)(a), which provides that a court can assert jurisdiction when Michigan is the child's home state or was the home state within six months of the commencement of the proceedings. 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." MCL 722.1102(g). In this case, the child has lived in Mexico since May 2017. So when the proceedings commenced in November 2018, Michigan was not the child's home state nor had it been in the prior six months. The circuit court correctly concluded that it did not have home-state jurisdiction.

         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); Cheesman, 311 Mich.App. at 154. Here, the circuit court determined that Mexico was the child's home state because she had been living there with "a person acting as a parent," i.e., the maternal grandmother. However, the phrase "[p]erson acting as a parent" has a unique meaning under the UCCJEA that the grandmother in this case does not meet. That phrase is defined as follows:

(m) "Person acting as a parent" means a person, other than a parent, who meets both of the following ...

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