Green v. Green, Docket No. 78-1508

CourtCourt of Appeal of Michigan (US)
Writing for the CourtBefore DANHOF; DANHOF; Whereupon, Washtenaw County Circuit Judge Ross Campbell telephoned the Texas court that had entered the initial custody decree to discuss whether Michigan should exercise its concurrent jurisdiction to modify the decree. The ju
PartiesDavid GREEN, Plaintiff-Appellee, v. Debbie GREEN, Defendant-Appellant. 87 Mich.App. 706, 276 N.W.2d 472
Decision Date28 December 1978
Docket NumberDocket No. 78-1508

Page 472

276 N.W.2d 472
David GREEN, Plaintiff-Appellee,
v.
Debbie GREEN, Defendant-Appellant.
Docket No. 78-1508.
87 Mich.App. 706, 276 N.W.2d 472
Court of Appeals of Michigan.
Dec. 28, 1978.
Released for Publication March 29, 1979.

Page 473

[87 MICHAPP 708] William H. Price, Jr., Ann Arbor, for defendant-appellant.

George C. Stewart, Ann Arbor, for plaintiff-appellee.

Before DANHOF, C. J., and BASHARA and CYNAR, JJ.

DANHOF, Chief Judge.

This case involves the custody of a minor child, presently living with her father, the plaintiff, and her paternal grandparents at the latter's home in Ann Arbor.

The plaintiff brought the child to Michigan in February, 1977, from Texas, where he had separated from the child's mother. Subsequently, the mother, defendant in this suit, won custody of the child by default judgment filed in Texas on June 2, 1977, and within two weeks thereafter came to Michigan to enforce the decree in the Washtenaw County Circuit Court. The circuit court agreed to accord full faith and credit to the Texas judgment, but stayed enforcement until the father had had a reasonable opportunity to petition the Texas court for an amendment based on a change in circumstances.

The plaintiff discovered that by Texas law the judgment could not be amended in that state for one year. Therefore, he petitioned the Washtenaw court to reconsider its order and determine the [87 MICHAPP 709] permanent custody of the child. The Washtenaw County Friend of the Court informed the court that, because the child was in a critical stage of her development, it was imperative to decide the custody question immediately.

Whereupon, Washtenaw County Circuit Judge Ross Campbell telephoned the Texas court that had entered the initial custody decree to discuss whether Michigan should exercise its concurrent jurisdiction to modify the decree. The judges agreed by phone, later confirmed by letter of record, that it would be expedient for the Michigan court at that time to make some determination of the child's custody. Accordingly, Judge Campbell held a hearing which both parties attended with counsel, and concluded it was in the best interest of the child to stay with the father so long as he remained unmarried and living at his parents' home.

The defendant appeals that decision raising issues under both the Uniform Child Custody Jurisdiction Act, M.C.L. § 600.651 Et seq.; M.S.A. § 27A.651 Et seq., and the Child Custody Act, M.C.L. §§ 722.21-722.29; M.S.A. §§ 25.312(1)-25.312(9).

I

She first contends that the Washtenaw County Circuit Court did not have subject matter jurisdiction to determine questions relating to the child's permanent custody. The authority to modify the custody decree of a foreign court is granted and conditioned by three sections of the Uniform Child Custody Jurisdiction Act.

The basic grant of jurisdiction is in Sec. 3, M.C.L. § 600.653; M.S.A. § 27A.653, which provides in pertinent part:

[87 MICHAPP 710] (a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) 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; or

(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one

Page 474

contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

Neither party seriously contends that the Washtenaw County Circuit Court lacked minimal jurisdiction. The plaintiff asserts that the court had jurisdiction under subsections 3(a)(1) and 3(a)(2). We agree there was jurisdiction under 3(a)(2). 1

[87 MICHAPP 711] The first condition to a court's Sec. 3 jurisdiction to modify a foreign custody decree is stated in subsection 14(a), M.C.L. § 600.664(1); M.S.A. § 27A.664(1):

"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."

The theory of this subsection is that courts rendering custody decrees normally retain continuing jurisdiction to modify them, and other states, in order to achieve greater stability of custody arrangements and avoid forum shopping, will defer to that continuing jurisdiction so long as the original state retains jurisdiction under the standards of the act. 9 Uniform Laws Annotated (Master ed.), Uniform Child Custody Jurisdiction Act, Commissioner's Note, p. 122. (Hereinafter Commissioner's Note.)

In this case, as the Washtenaw County Circuit Court acknowledged, Texas retained continuing jurisdiction to modify its original decree. See Commissioner's Note, Supra. We find, however, that the Texas court declined to exercise jurisdiction by its phone conversation and letter.

In determining whether to decline or retain jurisdiction, the Texas and Michigan judges admirably[87 MICHAPP 712] followed the procedures prescribed by the Uniform Child Custody Jurisdiction Act, Sec. 7, M.C.L. § 600.657; M.S.A. § 27A.657, including the suggestion in subsection d that the courts communicate and exchange pertinent information. 2

In her brief the defendant complains that the Texas court's decline of jurisdiction was too informal, that "courts speak through their written orders, not through letters between Judges". Neither the language of Sec. 14 nor the corresponding commissioner's

Page 475

notes require a court to formally decline to assume jurisdiction. The Act is to be construed to promote its purposes, which are generally to assure that child custody is determined by the state that can best decide the case in the interest of the child and to discourage relitigation and unilateral removal of children by avoiding judicial conflicts and by promoting cooperation and exchange of information between judges. See M.C.L. § 600.651; M.S.A. § 27A.651. While we would encourage judges in the future to decline jurisdiction by order, we find the purposes of the Act were adequately served in the present case by the judges' mutual decision and its official recordation.

A second qualification to a court's authority to modify under Sec. 3 is the "clean hands" principle of subsection 8(b), M.C.L. § 600.658(2); M.S.A. § 27A.658(2). That subsection is in two parts. The first mandates the court, "(u)nless required in the interest of the child," to decline to exercise jurisdiction to...

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13 practice notes
  • Brauch v. Shaw, No. 80-237
    • United States
    • Supreme Court of New Hampshire
    • June 26, 1981
    ...tactics of his parents. See Bosse v. Superior Court, 89 Cal.App.3d 440, 152 Cal.Rptr. 665, 668 (1979); [121 N.H. 573] Green v. Green, 87 Mich.App. 706, 714, 276 N.W.2d 472, 475-76 The defendant also asserts that the outstanding English wardship order and pending English custody proceeding d......
  • State ex rel. Dept. of Human Services v. Avinger, No. 16134
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 19, 1986
    ...consultation is subsequently memorialized by an order or memorandum from the forum that entered the earlier decree. Green v. Green, 87 Mich.App. 706, 711-12, 276 N.W.2d 472, 474-75 (1978). Only when there are compelling reasons, articulated in the record, that render such out-of-state appli......
  • Custody of Helwig, In re, Nos. 1282S483
    • United States
    • Indiana Supreme Court of Indiana
    • December 15, 1982
    ...Court In and For Seventeenth Judicial District, 196 Colo. 558, 587 P.2d 1199 (1978)." 395 N.E.2d at 1290-91. See also Green v. Green, 87 Mich.App. 706, 276 N.W.2d 472. This Court also found that the Superior Court of Marion County had no jurisdiction to modify a child custody decree entered......
  • Estate of Patterson, In re, No. 12562
    • United States
    • Court of Appeal of Missouri (US)
    • May 10, 1983
    ...substantial evidence concerning the children's present care, protection, training and personal relationships. Compare Green v. Green, 87 Mich.App. 706, 276 N.W.2d 472, 474 (1978); Nelson v. District Court, 186 Colo. 381, 527 P.2d 811, 813-814 It appears to us on this record that there may b......
  • Request a trial to view additional results
13 cases
  • Brauch v. Shaw, No. 80-237
    • United States
    • Supreme Court of New Hampshire
    • June 26, 1981
    ...tactics of his parents. See Bosse v. Superior Court, 89 Cal.App.3d 440, 152 Cal.Rptr. 665, 668 (1979); [121 N.H. 573] Green v. Green, 87 Mich.App. 706, 714, 276 N.W.2d 472, 475-76 The defendant also asserts that the outstanding English wardship order and pending English custody proceeding d......
  • State ex rel. Dept. of Human Services v. Avinger, No. 16134
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 19, 1986
    ...consultation is subsequently memorialized by an order or memorandum from the forum that entered the earlier decree. Green v. Green, 87 Mich.App. 706, 711-12, 276 N.W.2d 472, 474-75 (1978). Only when there are compelling reasons, articulated in the record, that render such out-of-state appli......
  • Custody of Helwig, In re, Nos. 1282S483
    • United States
    • Indiana Supreme Court of Indiana
    • December 15, 1982
    ...Court In and For Seventeenth Judicial District, 196 Colo. 558, 587 P.2d 1199 (1978)." 395 N.E.2d at 1290-91. See also Green v. Green, 87 Mich.App. 706, 276 N.W.2d 472. This Court also found that the Superior Court of Marion County had no jurisdiction to modify a child custody decree entered......
  • Estate of Patterson, In re, No. 12562
    • United States
    • Court of Appeal of Missouri (US)
    • May 10, 1983
    ...substantial evidence concerning the children's present care, protection, training and personal relationships. Compare Green v. Green, 87 Mich.App. 706, 276 N.W.2d 472, 474 (1978); Nelson v. District Court, 186 Colo. 381, 527 P.2d 811, 813-814 It appears to us on this record that there may b......
  • Request a trial to view additional results

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