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Family Law Case Updates

Granti v Granti, Court of Appeals Docket No. 289707, decided January 28, 2010 (unpublished).

Change of Domicile: “Act first, ask permission later” vetoed by Court of Appeals.

The parties divorced in 2002 and entered into a consent judgment that gave them joint legal custody of the minor children with primary physical to mother. Mom remarried in 2006 and both she and her new husband obtained jobs in Utah, where they had also purchased a home. Mother filed a petition to move the children to Utah but moved the children there before the trial court could act on the petition. The Court granted Father’s emergency motion for return of the children and for temporary physical custody. At the hearing, the court weighed the factors in MCL 722.31 and concluded that mother had failed to prove that a change of domicile was warranted under the statute. The court also awarded attorney fees to Father. Mother lost on appeal. The COA was unimpressed with Mother’s claim that she didn’t intend to permanently move the children to Utah and was equally unmoved by her complaint that father resorted to litigation before requesting the return of the children (actually Father had left a voice mail with Mother, which she failed to answer for 19 days, at which time Father filed his emergency motion). A party’s unilateral decision to remove a child from his or her state of residence (whether pre or post judgment) almost always results in the other party filing an emergency motion with the court. Such motions are frequently granted and the moving party almost never wins in the end.

Dekinderen v Dekinderen, Court of Appeals Docket No. 293443, decided January 10, 2010 (Unpublished).

UCCJEA Vacuum Jurisdiction.

Father was a resident of Michigan but Mother and the child had never resided in Michigan. The court entered a default divorce judgment, which included a custody provision. It was not clear whether the trial court realized that the child was living in North Carolina at the time the default was entered. The parties abided by the judgment until father filed an emergency petition for extended parenting time pending a hearing on his motion for change of custody. Because Michigan never had jurisdiction to enter the initial custody order, it could not exercise continuing jurisdiction over the child. It could have exercised “vacuum” jurisdiction because neither the child’s home state, nor any other state with jurisdiction, stepped forward to exercise it. The Michigan Court might also have had temporary emergency jurisdiction based on the allegations arising during a FOC investigation that the mother bit the child. There was a paucity of facts on the record regarding the child’s residence, but the Court of Appeals found that the trial court abused its discretion when it failed to consider whether it could properly exercise continuing jurisdiction in light of the possibility that no other state had jurisdiction over the child or other states having such jurisdiction had declined to exercise it. The case was remanded for the trial court to consider whether it might have jurisdiction based on the authority discussed by the COA.