Shopping for Home Field Advantage: Residence and International Child Custody Venue Determinations

By Jacob Simon

“We hesitate to essay any definition of ‘residence,’ for the word is like a slippery eel, and the definition which fits one situation will wriggle out of our hands when used in another context or in a different sense.”

-Judge Justin Ruark[1]

INTRODUCTION

Since 1983 The Hague Convention on the Civil Aspects of International Child Abduction (“The Hague”) has become the supreme doctrine of establishing proper venue for a child custody action when the parents live in different countries. While the United States is a signatory nation of The Hague, all states already provide for questions of venue for multijurisdictional child custody cases through the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).[2] Both laws instruct judges to make a factual finding on where the child resides.[3] However, only the UCCJEA provides for a court’s authority to exercise exclusive continuing jurisdiction over a child custody action.[4] This means the child can move to another state, but the case will stay in the state that made the original custody determination.[5] Further, “[w]hen applying the general and jurisdictional provisions of the UCCJEA, a foreign country is treated as a state of the United States.”[6] But The Hague is part of a ratified treaty, which makes its authority supreme over state law, right?[7]

PAVING THE WAY FOR CONTROVERSY

In White v. Harrison White, 280 Mich. App. 383 (2008), a couple married and had a child in Ontario, Canada.[8] The father took a new job in Grand Rapids, Michigan in 2001, and he initially commuted from Ontario, Canada.[9] A couple years later the entire family moved to Grand Rapids, Michigan.[10] After the separation but before the judgment of divorce the mother and child returned to Ontario while the father remained in Michigan.[11] Nevertheless, the divorce case and ensuing custody battle took place exclusively in Michigan courts.[12] Pursuant to the amended judgment, the father had alternating holidays and alternating weekends.[13] Additionally, the amended judgment ordered the father to exercise his “parenting time in the United States for two alternate weekends in a row, with parenting time for the third alternate weekend being exercised in Canada.”[14] About a year after the amended judgment was entered, the mother moved for a finding that the Michigan court no longer had jurisdiction over the custody case.[15] The trial court granted the motion and stated that “neither the child nor his parents [sic] have a significant connection with the State of Michigan and substantial evidence is no longer available in the state concerning the child's care, protection, training and personal relationships.”[16] However, on appeal the father successfully argued that pursuant to the UCCJEA, prior exclusive continuing jurisdiction only requires “one parent [to] reside[] in the state and exercise[] at least some parenting time in the state.”[17] Thus, the custody action remained in Michigan Courts despite the fact that the child was lawfully living in Canada.

ANALYSIS

Pursuant to The Hague, the trial court’s decision would make sense because the child was no longer a habitual resident of the United States, but rather Canada. It seemed reasonable considering the father was required to go to Canada to exercise some of his already limited parenting time. But the Court of Appeals was likely more concerned that the mother had consented to jurisdiction in Michigan for the divorce case and all of a sudden, four years later, appeared to be forum shopping for a modified result. Thus, it is unlikely that the Court of Appeals would have considered issues such as comity, undue burden to the foreign party, or other serious potential consequences of their application of the UCCJEA in this case.

A HYPOTHETICAL

What if instead of nearby Ontario, Canada, the mother and child relocated to Australia and instead of attempting to change the custody arrangement the mother was trying to Show Cause the father for a violation of the amended judgment? Pursuant to The Hague, the mother expects to be able to go to her local Australian court and obtain an order for immediate return of the child, serve it on the United States Department of State, and have the child returned to her.[18] This is because the Australian court would make a factual finding that the child’s habitual residence is Australia, therefore making Australian courts the proper venue. However, pursuant to the holding in White v. Harrison White, the father would argue that proper venue is Michigan pursuant to state law (UCCJA). Itis unclear how exactly this hypothetical would be resolved, but pursuant to the UCCJEA, whenever judges are presented with a question of venue they are required to engage in a “UCCJEA phone call.”[19] This would likely place the Michigan trial judge in the uncomfortable position of defending an application of the UCCJEA that the Australian judge would likely argue is in violation of The Hague.

CONCLUSION

            While White v. Harrison White has gone almost eight years without causing an international incident, the Michigan Court of Appeals should still revisit and clarify this inconsistency. It appears that the White court had good intentions in the form of preventing the mother from forum shopping. However, a blanket application the UCCJEA’s prior exclusive continuing jurisdiction provision to cases involving venue questions with foreign countries was improper. Instead, the White court could have achieved its goal of preventing forum shopping and respecting international norms on venue in child custody cases by strictly limiting the application of the UCCJEA to cases like White where the foreign party is not unduly burdened.

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[1] State v. Tustin, 322 S.W.2d 179, 180 (Mo. App. 1959).

[2] While the UCCJEA is a state law and can slightly differ from state to state, it has been adopted by all 50 states.

[3] Oct. 25, 1980, T.I.A.S., No. 11,670, 1343 U.N.T.S. 89 (The Hague looks for the “habitual residence” of the child); MCL § 722.1201(1)(a) (The UCCJEA looks for the state the child was living for the “6 months before the commencement of the proceedings”).

[4] MCL § 722.1202(1)(a)-(b).

[5] Id.

[6] White v. Harrison-White, 280 Mich. App. 383, 388, 760 N.W.2d 691, 695 (2008)

[7] U.S. Const. Art. VI, Cla 2.

[8] 280 Mich. App. at 388.

[9] Id.

[10] Id. at 384.

[11] Id.

[12] Id.

[13] Id. at 386.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 392.

[18] Oct. 25, 1980, T.I.A.S., No. 11,670, 1343 U.N.T.S. 89

[19] MCL § 722.1110(5)(b).