In re DANKE
Docket No. 104324.Michigan Court of Appeals.
Decided June 20, 1988.Marco A. Santia, for petitioner.
Daniel T. Stepek, for Michael Danke, Sr.
Jerald R. Lovell, of Counsel, for respondent.
Before: J.H. GILLIS, P.J., and WAHLS and DOCTOROFF, JJ.
WAHLS, J.
Albert Danke appeals as of right from an October 19, 1987, order of the Macomb Circuit Court dismissing his petition for custody of his grandson, Michael Danke, Jr., filed under the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), MCL 600.651 et seq.; MSA 27A.651 et seq. At a hearing regarding the petition conducted on September 28, 1987, the court stated that the issue presented was whether, despite a custody order issued by a California court in the context of a divorce proceeding between Michael Danke, Sr., and Tammy Danke, the father and mother of Michael Danke, Jr., a Michigan court had jurisdiction to entertain a petition for custody under the provisions of the UCCJA. Ultimately, jurisdiction under the UCCJA was found to be lacking; and, accordingly, the court dismissed the petition. We reverse and remand for further proceedings.
*455 The record reveals that the child in this case was born on July 28, 1981, when his father was nineteen years old and his mother was eighteen years old. Apparently, he resided with his parents until March 12, 1986, when, with his parents' consent, he began living in Michigan with petitioner, his paternal grandfather. The child's parents both signed notarized statements giving petitioner permission to obtain medical treatment for their child while in petitioner's care. It was known that the child's feet required medical attention. That attention was procured and paid for by petitioner, who also enrolled the child in a nursery school program and, later, in a local public school.
In May, 1987, Michael Danke, Sr., filed a petition for divorce in the Superior Court of California in Orange County. That petition stated that the parties had separated in February, 1985, and that the parties' child, Michael Danke, Jr., resided with his father in California. On August 4, 1987, the California court granted the petition for divorce and ordered that custody of the child be placed in his father for one year beginning in September, 1987, and in his mother the following year. After the petition for divorce was granted, the child's mother changed her residence from California to Oregon. When enforcement of the California custody order was sought, petitioner commenced the instant proceedings in the Macomb Circuit Court, requesting that that court take jurisdiction of the case under the UCCJA and order that custody of Michael Danke, Jr., be placed in petitioner.[1] On August 31, 1987, the court entered an ex parte order granting petitioner temporary custody of the child until September 28, 1987. The child's parents *456 were notified of the hearing scheduled on the petition; and, on September 28, 1987, that hearing was conducted, with arguments being presented by counsel for Albert Danke and by counsel for Michael Danke, Sr. At the hearing the court ruled that the only question before it concerned whether a Michigan court could properly exercise jurisdiction over the custody matter in view of the involvement of the California court. The court concluded that it did "not have jurisdiction due to the fact that California does have jurisdiction because of the parties being there."
Petitioner now appeals, arguing that the circuit court erred by concluding that it lacked jurisdiction to modify the existing custody order of the California court. We agree.
In this case, a Michigan court could not properly modify the California custody order unless it had the jurisdiction to do so under the UCCJA. The provision in the UCCJA concerning the modification of foreign custody decrees or judgments states:
If a court of another state has made a custody decree or judgment, a court of this state shall not modify that decree or judgment unless it appears to the court of this state that the court which rendered the decree or judgment does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with sections 651 to 673 or has declined to assume jurisdiction to modify the decree or judgment and the court of this state has jurisdiction. [MCL 600.664(1); MSA 27A.664(1).]
There is nothing in the record presented to us to suggest that the California court which issued the August 4, 1987, custody order has declined to assume jurisdiction to modify its decree. Accordingly, if a court of this state is to modify the *457 foreign custody order, it must be shown that the California court "does not now have jurisdiction under the jurisdictional prerequisites substantially in accordance with sections 651 to 673 ... and [that] the court of this state has jurisdiction." (Emphasis added.) The statutory clause, "does not now have jurisdiction," refers to the time when the petition to modify the foreign order was filed in Michigan. Bivins v Bivins, 146 Mich. App. 223, 231; 379 NW2d 431 (1985); Bull v Bull, 109 Mich. App. 328, 337; 311 NW2d 768 (1981). Thus, we look to whether a California or a Michigan court had jurisdiction in this case under the UCCJA on August 25, 1987, which was the date on which petitioner initiated the instant proceedings in the Macomb Circuit Court.
Whether a court has jurisdiction to decide or modify a child custody matter under the UCCJA depends upon whether the circumstances of the case in question fulfill one of the jurisdiction-conferring provisions in that act. Section 653(1) of the act states that such jurisdiction is conferred if any one of the following criteria is satisfied:
(a) This state is the home state of the child at the time of commencement of the proceeding or had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.
(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least 1 contestant, have a significant connection with this state and there is available in this state substantial evidence concerning the child's present or *458 future care, protection, training, and personal relationships.
(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.
(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a), (b), or (c) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child and it is in the best interest of the child that this court assume jurisdiction.
On the date petitioner initiated the present litigation, none of these criteria could be satisfied such as would permit a California, and not a Michigan, court to decide the matter of modifying the child custody order previously issued by a California court.
First, under § 653(1)(a), Michigan, not California, was the home state of Michael Danke, Jr., as of August 25, 1987. He had resided continuously with petitioner in Michigan since March 12, 1986 a period of more than seventeen months prior to the commencement of the present proceedings. This lengthy period in which the child resided in Michigan shows that his connection with this state, and not with California, was significant and considerable. See Brown v Brown, 104 Mich. App. 621, 625-626; 305 NW2d 272 (1981). The term "home state" is defined, in pertinent part, as "the state in which the child immediately preceding the time involved lived with his or her parents, a parent or a person acting as parent, for at least 6 consecutive months," MCL 600.652(e); MSA 27A.652(e). The term "person acting as parent" is defined, in pertinent *459 part, as "a person, other than a parent, who has physical custody of a child and who ... claims a right to custody," MCL 600.652(i); MSA 27A.652(i). In this case, the child was living in Michigan for at least six consecutive months with his paternal grandfather, who had physical custody of the child and who claims a right to custody. Thus, it is clear that any claim of jurisdiction by the California court with respect to the original child custody order would not be substantially in accordance with the mandate of § 653(1)(a).
Second, under § 653(1)(b), it appears that the child and petitioner, who is a "contestant" in this matter because he "claims a right to custody ... with respect to [the] child," MCL 600.652(a); MSA 27A.652(a), have a significant connection with Michigan and that there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships. As already noted, the child's seventeen-month presence in Michigan as of the date this case was commenced and, correspondingly, his seventeen-month absence from California strongly suggest that there were maximum contacts with Michigan. See McDonald v McDonald, 74 Mich. App. 119, 126-127; 253 NW2d 678 (1977); Dean v Dean, 133 Mich. App. 220, 226; 348 NW2d 725 (1984). Moreover, the records regarding the child's medical care, particularly the records regarding the care he obtained for problems he had experienced with his feet, as well as the records regarding his attendance in, and progress at, nursery school and elementary school are available in Michigan. Finally, for a lengthy period of time, all of the child's social contacts and relationships were formed in Michigan. Under these circumstances, it is clear to us that the child and petitioner have a much stronger tie to Michigan than *460 to California. It is thus in Michigan that a court would have optimum access to the relevant evidence concerning the child in this case and his family. Bivins, supra, pp 231-233.
Under § 653(1)(c), California would not have jurisdiction because the child is physically present in Michigan and there has been no showing of abandonment, abuse or neglect. Furthermore, under § 653(1)(d) California would not have jurisdiction because, as concluded above, it appears that under subsections (1)(a) and (1)(b) Michigan may properly exercise jurisdiction in this child custody matter.
Our conclusion that the Macomb Circuit Court erred by finding that it was without jurisdiction under the UCCJA to modify the California court's child custody order requires us to remand this case for a full evidentiary hearing. On remand, the circuit court shall determine, first, whether an established custodial environment exists, MCL 722.27(c); MSA 25.312(7)(c); Breas v Breas, 149 Mich. App. 103; 385 NW2d 743 (1986), and, second, whether a change in custody is in the best interests of the child, MCL 722.23; MSA 25.312(3); Curless v Curless, 137 Mich. App. 673, 677-678; 357 NW2d 921 (1984). If an established custodial environment exists, it must be shown by clear and convincing evidence that a change in custody would be in the best interests of the child. Arndt v Kasem, 135 Mich. App. 252, 256-257; 353 NW2d 497 (1984). If an established custodial environment does not exist, it must be shown by a mere preponderance of the evidence that a change in custody would be in the best interests of the child. Curless, supra, p 676. In determining the best interests of the child, the court must consider, evaluate and state a conclusion regarding each of the statutory factors enumerated in MCL 722.23; MSA 25.312(3).
Reversed and remanded for proceedings consistent with this opinion.
NOTES
[1] The fifty states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction Act. In California law, the act is codified in Cal Civ Code §§ 5150-5174 (West).