GRANDPARENTS WIN CUSTODY OVER PARENTS

OUT OF STATE INSTATE WHAT A MESS

Issues:
Complaint for determination of custody;
Whether the trial court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)(MCL 722.1201); MCL 722.1201(b)(1) ("significant connection" jurisdiction);
Whether the trial court properly determined the Texas state court established jurisdiction substantially in conformity with the UCCJEA; MCL 722.1206 (governing simultaneous proceedings);
Whether the Texas court's TRO violated §§ 106 and 205(1) of the UCCJEA (MCL 722.1106 and 722.1205(1)); "Child custody determination" (MCL 722.1102©));
Waiver of the issue of personal jurisdiction;
Whether the defendants' petition in intervention met the pleading requirements of UCCJEA § 209;
Whether defendants properly intervened in the Texas custody action; "Commencement" (UCCJEA § 102(5));
Whether defendants had standing to intervene in the Texas custody action; Blackburne & Brown Mortgage Co. v. Ziomek;
Whether plaintiffs were denied their due process rights under the Fourteenth Amendment by the Texas court proceedings and TRO; DeRose v. DeRose; Notice under the UCCJEA (MCL 722.1111); MCR 2.107©)
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
ROCHELLE LYNN NASH and JEFFREY SEAN MOTHER AND FATHER
SALTER,
Plaintiffs-Appellants,
FOR PUBLICATION
August 7, 2008
9:05 a.m.
v No. 282311
Wayne Circuit Court
Family Division
STEVE SALTER and KAREN SALTER, GRAND PARENTS
LC No. 07-722692-DC
Defendants-Appellees.
Before: Zahra, P.J., and Whitbeck and Beckering, JJ.
ZAHRA, J.
e-Journal Number: 40156
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THIS IS NOT A MICHIGAN CASE, IT BELONGS IN TEXAS
The trial court properly dismissed the plaintiffs-parents' complaint for determination of custody because they could not establish home state jurisdiction under the UCCJEA and the Texas state court established jurisdiction substantially in conformity with the UCCJEA.
GRAND PARENTS INTERVENED IN CASE BEGUN IN TEXAS
The court also concluded the defendants-grandparents properly intervened in the Texas custody action instituted by the plaintiff-father.
FATHER KIDS AND MOTHER LIVED IN TEXAS..THEN MOM MOVED TO TEXAS
Plaintiffs and the child lived with defendants in Texas from days after the child's birth in August 2006 until March 20, 2007, when the plaintiff-mother moved to Michigan.
THE DAY AFTER MOM MOVED DAD FILED IN TEXAS
The next day, the father filed a petition in Texas court requesting an order making him "sole managing conservator" of the child.
DAD THEN MOVED TO MICHIGAN
On or about May 20, 2007, he moved to Michigan with the child and apparently did not further pursue the custody petition.
GRAND PARENTS FILED IN TEXAS
Defendants filed a petition in intervention in the Texas court on July 23, 2007. Plaintiffs filed their complaint in Michigan court on August 22, 2007.
TEXAS COURT TOLD THE GRAND PARENTS TO GET THE CHILD
The Texas court entered an order on October 1, 2007 appointing defendants temporary sole managing conservators of the child, providing they had the right to physical custody of the child, and they were to take immediate possession of the child.
THE CHILD WAS RETURNED TO TEXAS AND THE GRAND PARENTS
The child moved back to Texas and has lived with defendants since December 3, 2007.
MOM AND DAD APPEALED THE MICHIGAN DECISION THAT IT DID NOT HAVE CUSTODY EVEN THOUGH THE PARENTS AND CHILD WERE IN MICHIGAN.
Plaintiffs argued the trial court erred in holding Michigan lacked subject matter jurisdiction to make a custody determination simply because it did not have home state jurisdiction.
THERE WERE SIGNIFICANT CONNECTIONS TO MICHIGAN
They contended MCL 722.1201(b)(1), "significant connection" jurisdiction, provided an alternative basis for jurisdiction.
TEXAS WAS THE HOME STATE
However, because Texas was the child's home state and the Texas court did not decline to exercise jurisdiction, the circumstances provided for in MCL 722.1201(a) or (b) did not exist. Further, since Texas was the child's home state on the date of commencement of the proceeding, the Texas court had subject matter jurisdiction under UCCJEA § 201. The court also concluded there was nothing in the language of the UCCJEA provisions plaintiffs cited to indicate the inadequacy of pleadings under § 209 deprived the Texas court of subject matter jurisdiction.
TEXAS KEEPS JURISDICTION THE GRAND PARENTS WIN
Affirmed.
–SUMMARY ENDS-OUTLINE OF OPINION FOLLOWS WITH DELETIONS AND CAPS
ADDED BY WRITER
Plaintiffs, Rochelle Nash and Jeffrey Salter, appeal as of right the order of the circuit
court dismissing their complaint for determination of custody. On appeal, they argue that the
circuit court erred in finding that it lacked subject matter jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act ("UCCJEA"), MCL 722.1201, to make a child
custody determination with respect to their daughter. Plaintiffs asked the circuit court to take
jurisdiction of this custody dispute and deny enforcement of a Texas custody order that plaintiffs
contend was rendered without jurisdiction. We conclude that plaintiffs cannot establish home
state jurisdiction under the UCCJEA. We also conclude that the circuit court properly
determined that the Texas court established jurisdiction substantially in conformity with the
UCCJEA. Further, we conclude that defendants, Steve Salter and Karen Salter, properly
intervened in the custody action in Texas instituted by plaintiff Jeffrey Salter. We affirm.
I. Basic Facts and Proceedings
This case arises from a custody dispute between plaintiffs, the parents of the child, and
defendants, who are Jeffrey Salter’s parents...THE PATERNAL GRAND PARENTS.... Plaintiffs and the child, who was born August 3, 2006, lived with defendants in Texas from approximately August 5, 2006, until March 20, 2007.
...
MOM AND DAD HAVE A FOOD FIGHT, DAD IS GOING TO SHOW HER AND FILES A COURT CASE, HE THEN GETS LOVE STRUCK RUNS TO MICHIGAN TO REJOIN HER. GRANDPARENTS SAY ENOUGH OF THIS NONSENSE NEITHER OF THESE BOZOS SHOULD RAISE THIS CHILD AND INTERVENE IN TEXAS AND .....WIN.
...
GRANDPARENTS TOLD THE TEXAS COURT that "appointment of [plaintiffs] as joint managing conservators would not be in the best interest
of the child because the appointment would significantly impair the child’s physical health or
emotional development," and asked the Texas court to appoint them joint managing conservators
with the "exclusive right to designate the primary residence of the child."
....
GRANDPARENTS WIN IN TEXAS
On October 1, 2007, the Texas court entered an order appointing defendants temporary
sole managing conservators and plaintiffs temporary possessory conservators of the child.
GRANDPARENTS GET CUSTODY AND PARENTS GET PARENTING TIME
The Texas court’s order provided that defendants had the right to physical custody of the child and that plaintiffs were to have possession of the child at times mutually agreed upon in advance by the parties.
TEXAS TOLD GRANDPARENTS TO GO GET THE CHILD.
The order further provided that defendants "shall take immediate possession of the
child at [plaintiffs’] residence" in Michigan. Defendants successfully moved to dismiss
plaintiffs’ complaint in the Michigan court. An order dismissing the Michigan action for lack of
subject matter jurisdiction was entered on November 7, 2007. The child moved back to Texas
and has resided with defendants since December 3, 2007. Plaintiffs returned to Texas to be near
the child.
II. Standard of Review
SUBJECT MATTER JURISDICTION
"Whether a trial court has subject-matter jurisdiction presents a question of law that this
Court reviews de novo." Atchison v Atchison, 256 Mich App 531, 534; 664 NW2d 249 (2003).
JURISDICTION DISCRETIONARY UNDER UCCJA
However, "the determination whether to exercise jurisdiction under the UCCJEA [is] within the
discretion of the trial court, and would not be reversed absent an abuse of that discretion."
Young v Punturo (On Reconsideration), 270 Mich App 553, 560; 718 NW2d 366 (2006). The
jurisdictional determination in this case involves the UCCJEA, codified in Michigan as MCL
722.1101 et seq. We review issues of statutory construction de novo as questions of law.
Atchison, supra at 534-535. We also review constitutional questions de novo. Blackburne &
Brown Mortgage Co v Ziomek, 264 Mich App 615, 620; 692 NW2d 388 (2004).
III. Analysis
A. Jurisdiction in Michigan
...
HOW DO YOU GET MICHIGAN TO TAKE JURISDICTION WHEN THE CHILD JUST GOT TO MICHIGAN?
The UCCJEA became effective in Michigan on April 1, 2002. Section 201, codified in
Michigan as MCL 722.1201, sets forth the basic jurisdictional requirement for making an initial
custody determination:
(1) Except as otherwise provided in section 204,[1] 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[2] 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.
©) 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


©).
(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.
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
1 Section 204, MCL 722.1204, provides for temporary emergency jurisdiction in a court of this
state "if the child is present in this state and the child has been abandoned or it is necessary in an
emergency to protect the child because the child, or a sibling or parent of the child, is subjected
to or threatened with mistreatment or abuse." This provision is not relevant here because
plaintiffs made no such allegation in their complaint.
2 "‘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." MCL 722.1102(g).
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.
Plaintiffs nonetheless argue that the Michigan court erred in holding that Michigan lacked
subject matter jurisdiction to make a custody determination solely because the Michigan court
did not have home state jurisdiction. Home state jurisdiction under MCL 722.1201(1)(a) is not
the only jurisdictional basis for making an initial custody determination. Plaintiffs argue that
MCL 722.1201(b)(1) provides an alternative ground to support a finding of jurisdiction in
Michigan. Plaintiffs refer to this jurisdictional ground as "significant connection" jurisdiction.
Plaintiffs’ argument is without legal merit.
Jurisdiction cannot be premised on the family’s significant connection to Michigan unless
the court first establishes: (1) there is no "home state" as that term is used in MCL
722.1201(1)(a); or (2) "a court of the home state of the child has declined to exercise jurisdiction
. . . ." MCL 722.1201(1)(b). Neither of the above circumstances exist in the present case. Texas
is the child’s home state and the Texas court did not decline to exercise jurisdiction. Thus,
Michigan does not have significant connection jurisdiction over this matter.
B. Dismissal After Concluding Texas Had Jurisdiction in Substantial Conformity With The
UCCJEA
Plaintiffs’ second argument on appeal is that the Michigan court erred in determining
that, because the Texas court had jurisdiction substantially in conformity with the UCCJEA, it
was required to dismiss plaintiffs’ complaint. We again find no merit to plaintiffs’ argument.
MCL 722.1206, which governs simultaneous proceedings, provides in pertinent part:
(1) Except as otherwise provided in section 204, a court of this state may not
exercise its jurisdiction under this article if, at the time of the commencement[3] of
the proceeding, a child-custody proceeding has been commenced in a court of
another state having jurisdiction substantially in conformity with this act, unless
the proceeding has been terminated or is stayed by the court of the other state
because a court of this state is a more convenient forum under section 207.
(2) Except as otherwise provided in section 204, before hearing a child-custody
proceeding, a court of this state shall examine the court documents and other
information supplied by the parties as required by section 209. If the court
3 "‘Commencement’ means the filing of the first pleading in a proceeding." MCL 722.1102(e).
determines that, at the time of the commencement of the proceeding, a child custody
proceeding has been commenced in a court in another state having
jurisdiction substantially in accordance with this act, the court of this state shall
stay its proceeding and communicate with the court of the other state. If the court
of the state having jurisdiction substantially in accordance with this act does not
determine that a court of this state is a more appropriate forum, the court of this
state shall dismiss the child-custody proceeding.
*****
Thus, because a child custody proceeding had been commenced in Texas at the time of the
commencement of the Michigan proceeding on August 22, 2007, the issue is whether Texas had
"jurisdiction substantially in conformity with this act." MCL 722.1206(1).
*****
...
Plaintiffs’ fifth argument on appeal is that the Texas court lacked jurisdiction because
defendants did not have standing to intervene in Jeffrey Salter’s petition for custody. We
disagree.
Although the Full Faith and Credit Clause, in addition to section 303 of the UCCJEA and
28 USCA § 1738A, requires recognition of sister state judgments, the Constitution does not
compel Michigan courts to recognize such judgments where the issuing court lacked jurisdiction
over the subject matter or the parties. Blackburne, supra at 620-621; 28 USCA § 1738A(a);
§ 1738A©). "[C]ollateral attack may be made in the courts of this state by showing that the
judgment sought to be enforced was void for want of jurisdiction in the court which issued it."
Blackburne, supra at 620-621 (quotation omitted). Thus, if plaintiffs can demonstrate that the
Texas court lacked personal or subject matter jurisdiction over this matter, its child custody order
is not entitled to full faith and credit by the courts of this state.
"Standing, as a necessary component of a court’s subject-matter jurisdiction, is a
constitutional prerequisite to maintaining a suit under Texas law." In re CMC, 192 SW3d 866,
869 (Tex App, 2006). "If a party lacks standing, a court lacks subject-matter jurisdiction to hear
a case." Id. Under Texas law, grandparents do not generally have standing to file an original
suit requesting managing conservatorship. Tex Fam Code Ann § 102.004(a).
However, under
certain circumstances, the Texas court may grant a grandparent leave to intervene. Section
102.004(b) of the Texas Family Code permits a court to grant a grandparent leave to intervene in
a pending, properly commenced suit where "there is satisfactory proof to the court that
appointment of a parent as a sole managing conservator or both parents as joint managing
conservators would significantly impair the child’s physical health or emotional development."
In this case, defendants, in their July 23, 2007, petition for intervention, alleged as
follows:
Conservatorship
It is in the best interest of the child that Intervenors be appointed joint managing
conservators of the child. Further, the appointment of the parents as joint
managing conservators would not be in the best interest of the child because the
appointment would significantly impair the child’s physical health or emotional
development.
....
Note this opinion has modification for the purpose of media presentation. Review the original and consult with an attorney before you rely on anything posted here.
Posted Here by Terry Bankert 8/15/08