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The COA released a published opinion providing some clarification on whether paternity actions can ever take precedence over adoption proceedings. In MKK, Minor, the COA reversed the trial court's order denying the putative father's motion to stay adoption proceedings pending resolution of his paternity action. The COA also reversed the trial court's order denying him custody of the minor child.

The putative father filed his paternity action in April 2008. Just a month later, a petition to adopt was filed along with the birth mother's petition for a hearing to identify the father and terminate his parental rights. The putative father argued that the adoption proceedings should be stayed pending the outcome of the paternity action because the paternity action would render the adoption proceedings moot. At the hearing, DNA results were revealed showing a 99.99 probability that the putative father was, in fact, the child's biological father. Despite this evidence, his motion to stay the adoption proceedings was denied. The court continued with a best interest hearing under the adoption code, finding that custody with the putative father was not in the child's best interest, but declining to terminate his parental rights.

The COA cited the statutory exception to the statutory mandate that adoption proceedings take priority reasoning adoption proceedings may be stayed upon a showing of good cause, to be determined on a case-by-case basis. The COA held that the trial court erred in denying the motion in this particular case because the putative father was the biological father, wished to be present for the child's birth, had been diligent in attempting to perfect paternity, and he had made efforts to prepare for fatherhood.

Foreshadowing commentary to come, the COA stated, "we do not intend to create a "race to the courthouse," where a paternity action takes precedence over an adoption proceeding merely because the paternity action was filed first; rather, the timing of a paternity claim is but one factor to be considered in determining whether there is good cause under MCL 710.25(2) to stay adoption proceedings." It further explained that because Michigan courts follow the presumption that the best interests of a child are served by awarding custody to the natural parents, giving a paternity action priority over an adoption proceeding does not necessarily conflict with protecting the best interests of the child.

Given the conflicting views on the interplay between the Adoption Code and Paternity Act, there is sure to be substantial commentary on this new opinion--"stay" tuned!

The Michigan Supreme Court granted leave in Foster v Wolkowitz. The Court will address: (1) whether the Court of Appeals erred in relying on the Michigan Acknowledgement of Parentage Act (MAPA) rather than the UCCJEA to determine that Michigan should exercise subject-matter jurisdiction in this interstate custody dispute; (2) if the COA correctly relied on the MAPA to establish subject-matter jurisdiction in Michigan, whether the statute violates the Equal Protection Clauses of the state and federal constitutions by creating a suspect classification of unmarried fathers who are treated differently than married fathers; and (3) if jurisdiction properly lies in Illinois, as the child's "home state" under the UCCJEA, whether Michigan is the more convenient forum for resolution of the case.

Justice Corrigan commented separately, asking parties to address how child support issues relate to or affect jurisdiction over custody. Although there are likely to be many different answers to these questions, one thing is clear: any clarification on frequently encountered jurisdictional dilemmas arising where provisions of other statutes conflict with the UCCJEA is both long-awaited and helpful!

In Vulaj v Vulaj, the Court of Appeals held that the plaintiff-husband waived his right to challenge the arbitrator's failure to comply with the Domestic Relations Arbitration Act, MCL 600.5070. When the defendant filed a motion for entry of judgment based on the arbitration award, the plaintiff's attorney, speaking of the arbitration award, simply stated, "my client just didn't like the arbitration," without formally objecting to it.

Plaintiff waited to challenge errors in the arbitration procedure on appeal. The COA held that plaintiff had expressly waived his right to challenge the arbitration errors at the hearing on the motion for entry of the arbitration award. Although the COA noted that preservation rules are discretionary, it reasoned that failure to apply them to cases like this encourages parties to sit on their objections. The COA stated, "there is nothing to stop a trial lawyers from either holding back on issues for use in a subsequent appellate attack on an unfavorable judgment, or to stop newly retained appellate counsel from sifting through the record and presenting issues to our Court for the first time. Under either approach, not only will there be a limited finality to any judgment of divorce entered after an arbitration award......but it will aslo result in unfettered gamesmanship in our appellate courts."

What can attorneys take from the Court's admonishment? When it comes to trial court objections, flaunt em' if you've got em' or "waive" them goodbye on appeal!