FOSTER V. WOLKOWITZ 785 N.W.2d 59 (2010) CASE BRIEF

FOSTER V. WOLKOWITZ

785 N.W.2d 59 (2010)

NATURE OF THE CASE: Wolkowitz (D) appealed a determination of jurisdiction in Michigan to determine the custody of his child and an affirmation of that jurisdiction by the appeals court.

FACTS: Foster (P) and Wolkowitz (D) are the biological parents of M. P and D cohabitated but never married. P and D executed and filed an AOP naming D as the child's father and establishing paternity. The child was born in Michigan but after the birth the parties lived in Illinois and continued to reside together. P attended college and worked, while D attended law school. Both had Illinois driver's licenses, and M. received state health insurance that required Illinois residency. P regularly returned to Michigan with the child for extended visits with Michigan family members. The relationship between the parties ended, and P and the child returned to Michigan to live with P's parents. Five days after returning to Michigan, P filed a paternity action. The Michigan trial judge entered an ex parte order granting the request for alternative service and a UCCJEA conference, but declined to address the custody issue. D filed a custody action in Illinois. A telephone conference was held between the judges to discuss which state had home-state jurisdiction under the UCCJEA. Both judges expressed initial agreement that jurisdiction should lie in Michigan, but also agreed that an evidentiary hearing should be held in Michigan in order to determine which state had home-state jurisdiction. D was granted parenting time in Michigan 'at his convenience.' he AOP was entered into evidence in the court record for the first time at this hearing. The court ruled that Michigan had jurisdiction to hear the case because, by executing an AOP, the parents 'consent[ed] to the jurisdiction of Michigan specifically on the issues of custody, support and parenting time.' Because the AOP granted 'initial custody' of a minor to the mother, the judge reasoned that the 'UCCJEA would not be invoked' because the 'grant of initial custody was already made by the parents who voluntarily invoked the Acknowledgment of Parentage law.' A custody hearing was held and the court awarded joint legal custody to both parties, and physical custody to the P. D was awarded parenting time, and a child support order was entered. D appealed the order of custody. The Court of Appeals affirmed the trial court's exercise of jurisdiction, holding that the trial court could properly exercise home-state jurisdiction under the UCCJEA because a properly executed AOP operated as an initial custody determination as a matter of law. Michigan had continuing jurisdiction and it was 'not necessary to consider D's argument that Illinois is the home state.'

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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