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About This Case

What this case is about: Foster v Wolkowitz is a child custody case where the mother left the family home in Chicago, Illinois, and took the child took Monroe, Michigan, a small town in southeast Michigan. As it will be heard in the Michigan Supreme Court, this case involves the equal protection clause of the United States Constitution, and the interpretation of a “uniform law” that has been adopted in 48 states. This case has very strange procedural history and is a case of first impression in Michigan – if not the entire country. For a succint summary of the issues that brought the case to the Michigan Supreme Court, view the fathers’ Application for Leave to Appeal, which the father in this case filed asking the Michigan Supreme Court to allow his appeal to that court

The Beginning: The mother filed her custody action in Michigan, and the father filed in Illinois (in Illinois, the case is known as Wolkowitz v. Foster). This meant there had to be some way to determine which state was to have jurisdiction. The law that determines jurisdiction in child custody disputes, where the child has a legally recognized father, is the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”).

Judges’ Teleconference:The UCCJEA states that when parents file in two separate states, the judges from those two states (Illinois and Michigan, in this case) hold a “judicial teleconference” to discuss which state should hold an evidentiary hearing that will determine the child’s UCCJEA “home state.” Under the UCCJEA, the “home state” is that state that has jurisdiction to make an initial custody determination. The judges in this case agreed that Michigan should hold the UCCJEA “home state” hearing, and both judges issued orders stating such.

Michigan court breaks its promise to the Illinois court: However, the Circuit Court of Monroe County Michigan broke its promise to the Illinois judge, and to the Illinois father, and failed to hold the UCCJEA home state hearing. Instead, the Michigan court took jurisdiction of the case using a different, old law that was not meant to resolve interstate child custody disputes.

The Appeals Process Begins: When the father appealed the trial court’s ruling, the appellate court agreed with the father that the UCCJEA is the law that determines which state has jurisdiction in a child custody dispute. However, it then applied the UCCJEA in a way that had never before been done, thereby inventing a way for Michigan to retain jurisdiction. According to the Michigan Court of Appeals (MCA), the Michigan court take jurisdiction of the case via the UCCJEA’s continuing jurisdiction provision – a provision that allows states to take jurisdiction in cases other than those involving an “initial custody determination.” In this case, the MCA determined that since the parents signed an “affidavit of parentage” after the child was born, that affidavit was an “initial custody determination,” and therefore, a UCCJEA home state hearing was inappropriate because home state hearings are only for “initial custody determinations.”

What is the reason for the strange trial and lower appellate decisions: By avoiding a UCCJEA “home state” hearing, the Michigan courts were able to take jurisdiction of the case. A home state hearing is primarily centered on determining where the child’s “home state” is by looking into where the child lived for the 6 months proceeding the filing of the custody action. In this case, the 14-month old child lived in Chicago, Illinois for approximately one year before her removal to Michigan. Therefore, a home state analysis clearly indicates that Illinois is the home state and should have jurisdiction over the case. Sometimes local courts favor their own citizens, and since UCCJEA cases are extremely rare, perhaps the jduge in Monroe, Michigan felt she was free from the burden of established precedent.

Why the Michigan Supreme Court is hearing this case:The UCCJEA was meant to resolve interstate child custody jurisdiction disputes – not create them. Therefore, the Michigan Supreme Court issued an order allowing the father to appeal and outlining the issues it wanted addressed in the parties’ briefs. The highest court of the various states don’t take cases merely to approve of the lower court’s ruling. Hear, the MCA’s determination that the “affidavit of parentage” amounted to an “initial custody determination” was erroneous, because the affidavit is just a document that the parents notarize – it is not anything reflecting the “determination” of any court. Further, the Michigan Supreme Court is interested in the case because the UCCJEA has been adopted in almost every state in the country, and its purpose is to resolve conflicts between states, so it is crucial that it be applied correctly. Further, the case is important because in this case the father was treated in a way that violates that equal protection clause of the United States Constitution.