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Two recent Michigan Court of Appeals decisions, if not reversed, may end up hindering direct placement adoptions in Michigan.

The rulings in In re MGR, Minor and In re LMB, Minor are concerning for prospective adoptive parents because they allow putative fathers to stop an adoption in its tracks, simply by obtaining an order of filiation from the trial court. 

In both cases, the Court of Appeals indicated that it does not matter how far along in the adoption process the putative father gets the order of filiation, nor does it matter whether he provided no support to the child or the mother.

In re MGR

In re MGR (Docket Nos. 338286 and 340203, issued 2/27/18) is a published and binding decision. The matter involved concurrent adoption and paternity proceedings.

The putative father in the case appeared by telephone at the March 2017 adoption hearing, conducted pursuant to §39 of the Adoption Code (MCL 710.39). The trial court later entered an order indicating it would take no further action in the adoption case until the paternity action was resolved. That order was appealed, and the Court of Appeals granted a motion for immediate consideration.

In a May 2017 unpublished order, the Court of Appeals instructed the trial court to continue the adoption proceedings. Accordingly, the trial court recommenced the §39 adoption hearing and issued an opinion, finding that although the putative father did not appear in person at the March 2017 hearing, he properly appeared by telephone and expressed his intent to pursue custody if a paternity test showed him to be the child’s father. The trial court also determined the putative father was a “do something” father and declined to terminate his parental rights.

On appeal, the appellants argued the trial court should have terminated the putative father’s parental rights because he did not personally appear and contest custody during the §39 hearing. The Court of Appeals disagreed, affirming the trial court’s finding that the putative father properly appeared at the adoption hearing. The Court also dismissed as moot the claim that the adoption proceedings were improperly adjourned.

The appellants further argued the trial court erroneously held that the putative father provided “substantial and regular support or care” to the mother during her pregnancy, so that his parental rights could not be terminated. Ruling this issue was moot, the Court of Appeals said: “After the trial court entered its opinion and order declining to terminate appellee’s parental rights under MCL 710.39(2), the same court entered an order of filiation in the separate paternity action, declaring appellee to be MGR’s biological and, therefore, legal father. Accordingly, appellee is no longer a putative father, and neither we nor the trial court can grant relief under MCL 710.39(1) and (2), which both exclusively address termination of a putative father’s rights during the course of an adoption. As appellee is now considered a legal parent, his rights can only be terminated pursuant to MCL 712A.19b.”

The Court of Appeals continued by finding an order of filiation can control the disposition of the adoption appeal, thus refuting the argument that proceedings under the Adoption Code take precedence over actions under the Paternity Act. “[T]hat argument is contradicted by this Court’s decision in In re MKK [286 Mich App 546 (2009)],” the Court said. “Additionally, although the Legislature has indicated that adoption proceedings should generally have the highest priority on court dockets ‘so as to provide for their earliest practicable disposition,’ … no statutory provision has been pointed out to us mandating that adoption proceedings must always be completed before a determination in a parallel paternity proceeding. MCL 710.25(2) in fact creates an exception to the general rule, allowing for the adjournment of adoption proceedings upon a showing of good cause.”

The In re MKK panel had ruled that good cause to adjourn an adoption hearing “can be established by the existence of a timely paternity action,” the Court of Appeals said, noting that In re MKK is a binding decision that has not been rejected by the courts.

In conclusion, the Court of Appeals discounted the concern that trial courts will “purposefully insulate” their adoption rulings by subsequently entering an order of filiation that would moot the appeal of the earlier adoption ruling. “Rather, we employ the well-earned presumption that trial courts act properly in accord with their constitutional duties,” the Court stated.

In re LMB

In re LMB (Docket No. 338169, issued 3/13/18) is an unpublished decision that, like In re MGR, involved concurrent adoption and paternity proceedings.

The putative father in the case did not support the child or the mother, and did not have a custodial relationship with the child. At the §39 adoption hearing, the trial court refused to terminate the putative father’s rights to the child. The decision was appealed.

After the §39 adoption hearing began, the putative father filed a paternity action. While the adoption appeal was pending, the trial judge in the paternity case entered an order of filiation under which the putative father was held to be the child’s legal father. The prospective adoptive parents filed a motion to stay the paternity case and prevent entry of the order of filiation, but the motion was denied.

The Court of Appeals first decided In re LMB in September 2017, finding that the adoption issue was moot because an order of filiation had been entered by the trial court. The case was subsequently appealed to the Michigan Supreme Court, which vacated the Court of Appeals decision and remanded for reconsideration in light of the Court of Appeals order in Sarna v Healy (Docket No. 341211, issued 12/18/17).

On remand, the Court of Appeals again dismissed the appeal as moot because the order of filiation was not vacated and the respondent’s status as the child’s legal father had not changed.

In reaching this conclusion, the Court of Appeals noted it was bound to follow its decision in In re MGR. “In that case, the trial court entered an order refusing to terminate the then-putative father’s parental rights to MGR pursuant to MCL 710.39, and then, while the petitioners’ appeal of that decision was pending, the trial court entered an order of filiation determining the putative father to be the child’s legal father,” the Court wrote.

“The pertinent facts of this case are the same as in In re MGR and, as a published decision, In re MGR is binding precedent,” the Court of Appeals said. “Accordingly, because respondent father is LMB’s legal father, it is impossible for this Court to grant petitioners’ requested relief and remand for a determination of whether respondent legal father’s rights should be terminated under a section only applicable to putative father.”

Concerns For Prospective Adoptive Parents

The decisions in In re MGR and In re LMB focus on the interplay between the Paternity Act and the Adoption Code. Both rulings create concerns when it comes to adoptions, particularly because there is no policy that paternity proceedings be stayed while an adoption case is pending.

It is especially troublesome that, based on the decisions in In re MGR and In re LMB, a putative father can moot an adoption appeal simply by obtaining a DNA test and an order of filiation. Pursuant to the rulings in both cases, appellate review of an adoption decision favoring the putative father is basically eliminated.

At the Speaker Law Firm, we believe the ability to prevent appellate review through a concurrent paternity proceeding will result in the inconsistent application of the law. Unfortunately, it will also lead to unpredictability for prospective adoptive parents in cases where a putative father comes forth.

Both In re MGR and In re LMB are being appealed to the Michigan Supreme Court.

A trial court properly took jurisdiction over a mother’s three children after she allegedly coerced one of them into a gender role with which the child did not identify, the Michigan Court of Appeals has ruled, finding that the mother’s actions constituted “abuse.”

“[W]e conclude that forcing a child to act as a gender the child does not identify with – whatever gender that is, and whatever gender the parent is attempting to coerce – is certainly the kind of mistreatment by a parent that could cause deep and lasting harm to a child,” the Court of Appeals wrote in In re Churchill/Belinski, Minors (Docket No. 337790, unpublished per curiam opinion, issued 3/15/18).

Accordingly, the Court of Appeals affirmed the Clare County Circuit Court’s order taking jurisdiction over the children and transferring custody of the children to their respective fathers. The Court also affirmed the trial court’s order granting the mother parenting time and directing her to participate in psychological therapy “with a provider of her choice.”

However, in its opinion, the Court of Appeals expressed some concern about the Michigan Department of Health and Human Services’ (DHHS) reasons for pursuing the petition in the first place. “While we have some reservations about [DHHS’s] motives, we reluctantly are required to affirm,” the Court stated.

Trial Court Takes Jurisdiction

The case primarily involved one of the mother’s children being allegedly coerced into a gender role that the child “had previously expressed some interest in but ultimately did not want.”

After the trial court took jurisdiction over the children, the mother appealed. She argued that even if the assertions in the DHHS petition were true, it was insufficient to take jurisdiction over her children.

The mother also asserted that, if the trial court’s decision was affirmed, it would set a dangerous precedent for parents who are trying to care for their gender nonconforming children based on the most recent professional standards because it would categorize the best practices as abuse.

Meanwhile, DHHS maintained that the evidence in the case was “overwhelming.”

‘No Other Option’

In its opinion, the Court of Appeals disagreed with the mother – and also disagreed with DHHS in several respects.

“The evidence was nothing even remotely of the sort,” the Court of Appeals said, referring to DHHS’s claim of “overwhelming” evidence. According to the Court, it was affirming the trial court’s decision “only because the applicable standards of review or mandatory inferences we are required to draw in petitioner’s favor leave us with no other option.”

Notably, the Youth Law Center filed an amicus brief in the matter, arguing it was a case of a child “being taken away from a loving and concerned parent strictly for being transgendered.”

But according to the Court of Appeals, the allegations were “exactly the opposite” – the child was not transgender and the mother “was harming the child by forcing a gender identity onto the child rather than permitting one.”

The Court of Appeals further emphasized that its decision was based on a finding that the law “absolutely cannot countenance, and absolutely deems abusive, forcing a particular gender on a child against the child’s wishes, no matter in which way the gender is forced. In other words, it would constitute abuse to force a child who is transgender to conform to any particular gender identity, as well.”

According to the Court of Appeals, forcing a child to act as a gender the child does not identify with is the kind of mistreatment that could cause long-term harm to a child. In this case, the Court pointed out the child was reportedly not transgender and the mother was allegedly coercing him into a female role against his wishes.

“Such treatment constitutes abuse, and it is therefore a sufficient basis for taking jurisdiction,” the Court of Appeals wrote. “Our conclusion would be identical if [the child] was transgender and respondent was coercing him into a male role against his wishes.”

Based on the seriousness of the allegations, the Court of Appeals said the trial court correctly declined to dismiss the DHHS petition and properly denied the mother’s motion for a directed verdict. The Court further held that the jury verdict was not against the great weight of the evidence.

“Ultimately, despite our concerns, the law precludes this Court from acting as a thirteenth juror, and because it favors resolution of issues on their merits, it constrains us to conclude that the matter was properly submitted to the jury and properly disposed of by the trial court thereafter,” the Court of Appeals concluded.

            In In re LMB (Docket No. 338169), the Court of Appeals held that entry of an order of filiation while an adoption appeal was pending mooted the adoption appeal.

            The adoption case involved a putative father who had undisputedly neither provided any support to the child or the birth mother, nor had any custodial relationship with the child. The adoption trial court refused to terminate the putative father’s rights to the child, but its own opinion was highly critical of the putative father. The prospective adoptive parents appealed the decision of the trial court, questioning both the trial court’s choice of standard of proof, and whether custody with the putative father was truly in the child’s best interests given the copious evidence of immaturity, irresponsibility, and instability.

            After the Section 39 hearing under the Adoption Code had begun, the putative father filed a paternity action. While the adoption appeal was pending, the paternity trial court entered an order of filiation making the putative father the legal father of the child. The prospective adoptive parents attempted to stay the paternity case and prevent entry of an order of filiation prior to resolution of their adoption appeal, but the paternity trial court refused to stay the case, and the Court of Appeals dismissed the adoption appeal as moot.

            In re LMB brings to light important issues with respect to the interplay of the Paternity Act and the Adoption Code. The Court of Appeals’ decision, with no concurrent policy that paternity courts stay their proceedings pending adoption matters, creates real problems in the area of adoption law. The ability to moot an adoption appeal simply by obtaining a DNA test and an order of filiation effectively eliminates the ability of prospective adoptive parents or birth mothers to appeal any adoption case denying termination of parental rights, which eliminates appellate review of any adoption decision favoring a putative father. The ability to actively prevent appellate review through a concurrent paternity proceeding will lead to poor and inconsistent application of the law and unpredictability for prospective adoptive parents in any case in which a putative father may emerge seeking the child.

            An application for leave to appeal is now pending in the Michigan Supreme Court in LMB, as well as an application to the Court of Appeals of the related paternity case—in the hopes of obtaining a decision that will preserve prospective adoptive parents’ right to appeal and adoptees’ rights to a placement based on their best interests.

             
                The International Child Abduction Remedies Act and the Hague Convention are both in place to ensure that one parent is unable to abduct the children from the other parent, alienating them from their children. Ahmed v Ahmed, 867 F3d 682 (2017), is a case looking at both of these laws. The father seeks to have his children returned to the United Kingdom from the United States. For the father to obtain a remedy both countries must be part of the Hague Convention–and they are. Then under the Hague Convention there are two methods to determine the child’s proper habitual residence.

               The preferred method by the court is the “acclimatization standard.” This is where the aspects of the child’s life are considered to attempt to determine whether the child would consider themselves acclimated to one place over another. The first thing to analyze under this standard is whether the child is old enough to form meaningful relationships and is actually capable of acclimating to a certain place over another. Other factors to consider under the acclimatization standard is the period a child spends in a certain location, academic activities, social engagements, sports programs, etc.. This standard will not always work because, as alluded to before, some children are not old enough to have these meaningful relationships. When the child is at such a young age, the court will then analyze the second test, the parents’ shared intent. To determine the parents’ shared intent, it must be clear what the intent actually is. The reason these cases are generally in the court is because the parent’s intentions for the child differs. In Ahmed, the United States District Court denied the father’s request to have the children returned to the United Kingdom because he failed to meet his burden of proof showing that either the children were acclimated to the United Kingdom, or that the intent of both parents was that the children move to the United Kingdom. The district court did not analyze the intent of the parents, but only the acclimatization standard. In analyzing this standard, the district court focused mainly on the length that the children had stayed in a single location and stated that the seven to eight weeks in the United Kingdom was not sufficient time to have the children returned there.

               On appeal to the Sixth Circuit, the father argued that the intent of the parents should have been analyzed when clearly the infant children were not old enough to be acclimated to one location over another. The Sixth Circuit went through the analysis of the parents’ shared intent for the children. The father argued that the married couple had agreed in 2013 to move to the United Kingdom together before the children were conceived. The marriage then fell apart in February 2014 and at this point the intent was not clear. The Sixth Circuit concluded that because the mother had her valuable possessions in the United States and, was still maintaining her optometrist license in the United States, she did not intend to stay in the United Kingdom and that the father failed to meet his burden of proof that the United Kingdom was the children’s habitual residence. The Sixth Circuit, thus, affirmed the district court.

             Recently, the Speaker Law Firm obtained a published opinion on the post-judgment of divorce case of O’Leary v O’Leary,  ___ Mich App ___ (Docket 333519), which has broad application beyond the family law context.

In O’Leary, the parties’ judgement of divorce required the marital home to be sold and “the indebtedness or profit shall be shared equally.” The husband finally sold the home 6 years later for a loss. The husband waited for several years ­­­––as he was paying off the short sale–– before he sought to enforce the judgement of divorce by seeking reimbursement from his ex-wife for her one-half share of the indebtedness. The wife argued that the motion to enforce was barred by the 10-year statute of limitations; the husband argued that the time to enforce did not begin to accrue until he sold the home for a loss. The trial court agreed with the wife and denied the husband’s motion to enforce. 

The Court of Appeals examined the interplay of MCL 603.5809 (limitations) and MCL 600.5827 (accrual).

Section 5809 provides:

A person shall not bring or maintain an action to enforce a noncontractual

money obligation unless, after the claim first accrued to the person, …the person commences the action within the applicable period of time prescribed by this section…[T]he period of limitations is 10 years for an action founded upon a judgment…from the time of the rendition of the judgment or decree… [Emphasis added by Court of Appeals opinion]

Section 5827 provides:

Except as otherwise expressly provided, the period of limitations runs from the

time the claim accrues. The claim accrues at the time provided in [MCL

600.5829 to MCL 600.5858], and in cases not covered by these sections the claim

accrues at the time the wrong upon which the claim is based was done regardless

of the time when damage results. [Emphasis added by Court of Appeals opinion]

The Court of Appeals held in a published opinion that the judgement of divorce was subject to a 10-year statute of limitations contained in MCL 600.5809. However, the Court of Appeals concluded that the accrual provision of MCL 600.5827 triggered the 10-year limitation period, such that the husband’s claim was timely filed under 600.5809 because he filed within 10 years of selling the house for a loss. 

           
             Defendant Jeffrey Titus, convicted in 2002 by jury trial of the first-degree premeditated murders of Doug Estes and James Bennett, likes to spend time in litigation. We first wrote about him in Estes v Titus (July 2008) where the wife of Estes was trying to collect a wrongful death judgment from Titus who had transferred all his assets to his wife when they divorced. The Supreme Court ruled - with a caveat - that a property division in a divorce could be the subject of a Uniform Fraudulent Transfer Act action. Speaker Law Firm wrote the amicus brief for the Family Law Section (the Supreme Court disagreed with our position, but the concurring opinion by Marilyn Kelly did agree with us).

            In People v Titus. No. 329770, posted May 4, 2017, defendant Titus filed the latest of his appeals. The MCOA affirmed his convictions in 2004 in People v Titus, (Docket No. 243642). In 2014, defendant filed a motion for relief from judgment in the trial court. Defendant appealed when his motion for relief was denied. People v Titus, unpublished order of the Court of Appeals, entered March 24, 2016 (Docket No. 329770).

            In this appeal, the defendant raised the issue of ineffective assistance of counsel. The court wrote that to prove ineffective assistance of counsel, the defendant must show that counsel’s performance fell below objective standards of reasonableness and that, but for counsel’s deficient performance, there is a reasonable probability that the result of the proceedings would have been different. Effective assistance of counsel is presumed and the defendant bears a heavy burden of proving otherwise.

            Since the defendant already filed a motion for relief from judgment which was denied, the court noted that it could not grant this motion if it alleged grounds for relief that could have been raised on direct appeal from the defendant’s conviction, unless the defendant demonstrates:

• “Good cause” for the failure to raise the grounds for relief on appeal, and 
• “Actual prejudice” from the alleged irregularities.

            Titus argued that he satisfied the good-cause requirement because appellate counsel was ineffective for failing to raise the issue of defense counsel’s ineffective assistance of counsel on direct appeal. The test, wrote the court, for ineffective assistance of appellate counsel is the same as that applicable to a claim of ineffective assistance of trial counsel. Thus, a defendant must show that appellate counsel’s decision not to raise an issue on appeal fell below an objective standard of reasonableness and prejudiced the appeal.

            The defendant raised several issues about the trial as examples of the ineffectiveness of the trial counsel and, by extension, appellate counsel. The court carefully reviewed each claim finding:

“Because defendant has failed to establish that defense counsel’s performance was deficient, appellate counsel was not ineffective for failing to raise the claims of ineffective assistance on direct appeal. Defendant has failed to establish good cause, MCR 6.508(D)(3)(a), and defendant is not entitled to relief on his claims of ineffective assistance of counsel.”

            Defendant also argued that the prosecution violated Brady v Maryland, 373 US 83, (1963) by failing to disclose that Det. Mattison had theorized that two shooters perpetrated the murders. To establish a Brady claim the defendant must show:

            The court found no Brady violation noting that not every stray thought of the detectives of the case need to be revealed by the prosecution. The court decided that two-shooter theory was not required to be disclosed.

            Defendant also argued that the trial court abused its discretion in concluding that the prosecution’s character evidence and [defendant’s] offhand remarks about the killings of his co-workers somehow outweighed the new evidence of innocence. Concluding that the defendant was trying to raise an argument regarding cumulative error, the court wrote that, since defendant failed to establish that he was denied the effective assistance of counsel or that there was a Brady violation, there are no irregularities that could be combined to determine a cumulative effect of errors.
Affirmed.

             
                The Michigan Court of Appeals, in Hund v Hund, No.334313, a divided opinion, affirmed a lower court order that denied defendant-mother’s request to change the legal residence of the child, OMH, to Canada while granting plaintiff-father’s motion for primary physical custody. The dissenting opinion, written by Hon. Michael Gadola, argued that a change of domicile to Canada was warranted and that the lower court abused its discretion by granting the father’s motion for change of custody.

Facts: 

               The Hunds divorced in 2013. The parties agreed to joint legal custody of their child, OMH, the mother having primary physical custody while the father had parenting time. Time passed and the mother met and married Ryan Tiernay who lived in Sarnia, Ontario, Canada. At the time mother lived in Howell and father lived in Pinckney. The mother filed a motion in the court to change the child’s legal residence to Sarnia when the father wouldn’t allow the child to move. Following a two-day hearing, the referee recommended:

The defendant objected to the recommendation, however, the trial court adopted the recommendations. The Court of Appeals affirmed the trial court.

The March 2017 Michigan Family Law Journal contains an Article written by two of our attorneys, Liisa Speaker and Jennifer Alberts.  The article is called "What's the Difference Between "Reverse" and "Vacate"?  on page 33.  The Family Law Journal is only available to members of the Michigan Family Law Section, more information HERE.

To understand these three inter-related appeals, Cassidy v Cassidy and Hansen, No. 328004, No. 328024 and Cassidy v Cassidy, No. 333319, we first must state the facts of this not-so-simple divorce matter. Joy and Robert Cassidy were married in 1997. Joy filed for divorce from Robert in 2012 after confirming that Robert had been having an affair with Mary Hansen. During the course of the affair, Robert gave Hansen over $300,000 to remodel her East Ellen Street house. By the time of the trial, Robert decided the money was a “loan.”

Much of the trial focused on whether Robert and Hansen, named as a defendant, conspired to defraud Joy of her share of the marital estate. While Robert agreed that the money should be considered part of the marital estate, he denied he and Hansen acted together to thwart Joy’s share of the family money. Joy claimed to be ignorant of the family’s financial situation.

After 15 days of trial, Genesee Circuit Court Judge F. Kay Behm found that Robert and Hansen conspired to defraud Joy of her right-full share of the marital estate. She ordered that a constructive trust existed over East Ellen Street home.

Three appeals resulted:

No. 328004—Hansen appealed the judgment of divorce claiming that the trial court erred in failing to grant Hansen a summary disposition on Joy’s claim under the Uniform Fraudulent Transfer Act (UFTA), arguing that:

1. UFTA doesn't apply because Joy was not a creditor at the time of the transfer and there was no active concealment of assets,
2. The court erred in denying jury request, and
3. The court erred in ordering Hansen to pay back more than the loan amount and in placing a lien in favor of ConRadical (Robert's business) who was a non-party to the divorce. 

No: 328024—Defendant Robert appealed challenging the division of property, which included holding him responsible for substantial tax liability for under-payment of taxes, $1000 a month spousal support and an award of over $150,000 in attorney fees.

No: 333319—Defendant Robert challenged a trial court contempt order requiring to spend 10 days in jail until he paid the attorney fees.

The COA upheld the trial court’s decisions on all three appeals.

NO. 328004: Hansen Appeal

According to the COA, Hansen’s attorney led the trial court into an “unnecessary dialogue regarding what ‘cause of action’ was raised against Hansen and, once plaintiff settled on the UFTA, whether Hansen was entitled to a jury trial. Those inquiries were unnecessary, given the trial court’s express equitable power in the divorce proceeding to determine and distribute the marital estate.

The court reasoned that Hansen was properly brought into the case because:

1. The jurisdiction of the divorce court is statutory and limited to determining the rights and obligations between the husband and wife, to the exclusion of third parties.
2. There is an exception (Estes v Titus, 481 Mich 573 (2008)) when fraud is raised, third parties can be added if they conspired with one of the parties to defraud the other spouse of a property interest.
3. Although Hansen was brought into the case involuntarily, the court, after reviewing Wiand v Wiand,178 Mich App 137 (1989), and Thames v Thames, 191 Mich App 299 (1991), found that the trial court may “adjudicate the rights of third parties even when they are not named as parties” due to the deliberate hiding of marital assets from one of the spouses.

The court also decided that Hansen had no right to a jury trial writing: “Given that a trial court may adjudicate the rights of third parties even when they are not named as parties, as in Donahue [v Donahue, 134 Mich App 696; 352 NW2d 705 (1984)] and Wiand [v Wiand,178 Mich App 137; 443 NW2d 464 (1989)], it follows that there is no right to a jury trial when the third party has been named as a party.”

And, finally, Hansen argued that the court erred in placing a lien on the East Ellen home that included the $364,000 she “borrowed” from Robert and the $70,000 she received from ConRadical. The trial court determined the funds were Robert’s wages and part of the “loan” received by Hansen and thus part of the marital estate.

In this well-reasoned opinion, the trial court decisions in both appeals NO: 333319 (contempt of court) and NO: 328024 (challenges to the distribution of the marital estate) were affirmed and plaintiff may tax costs.

The Court of Appeals' jurisdiction in post judgment custody appeals has long been a vexing area for family law attorneys. MCR 7.202 grants an appeal by right to post judgment orders affecting custody. Due to the uncertainty in how the Court of Appeals interprets 7.202(6)(a)(iii), many times appellate attorneys will simultaneously file a claim and an application. But there is additional cost and rush to do an application in 21 days. Obviously this type of uncertainty is not ideal. For a period of time the Court of Appeals seemed more willing to accept appeals of orders as post judgment orders affecting custody. The trend seemed to be that the court would accept a claim if the appeal was brought by a custodial parent, even when it was just a parenting modification. See Simon v Simon (Docket No. 308528); Jackson v Anderson (Docket No. 315648). But the Court of Appeals was more likely to dismiss the appeal by right when a non-custodial parent challenged the custody order. See, e.g., Flick v Marsh (Docket No. 327679). The Court of Appeals seemed to resolve the uncertainty in Wardell v Hincka, 297 Mich App 127 (2012) (Docket No. 308243) seemed to resolve this issue when it held that an order need not change custody to “affect” custody, and that a denial of a motion to change custody “affects” custody just as a grant of such a motion does.

However, the Court of Appeals changed the direction again last year in Madson v Jaso (Docket No. 331605) and Ozimek v Rodgers (Docket No. 331726). After dismissing the appeals by right for lack of jurisdiction, the parties appealed to the Supreme Court and the Supreme Court remanded for the Court of Appeals to issue an opinion on the jurisdictional issue. The result was 2 opinions issued on the same day. In Madson the sole physical custodian challenged a parenting time order that completely swapped the schedule from the father having most of time and mother having alternating weekends to the converse. The Court of Appeals however characterized it as a "make up" parenting time order. 

 Ozimek is a legal custody issue when a change of school was denied. The Court said legal custody does not "affect custody."

            Both cases are pending in the Supreme Court for a second time and family law appellate attorneys anxiously await a decision.

The Michigan Court of Appeals has peremptorily vacated a trial court order that denied a mother’s motion to transfer a child-custody case from Michigan to Idaho.
In Ansah v Ansah (Docket No. 330121), the parties’ divorce judgment was entered in Calhoun County, Michigan. Several years later, the father filed a motion to modify custody in the Calhoun County Circuit Court. The mother requested that the court transfer the case to Idaho, where she had lived with the parties’ child since the divorce was final in 2013. The trial court denied the motion.
The mother appealed, asking the Court of Appeals to peremptorily reverse the trial court’s order denying her motion to transfer the custody case to Idaho.
In making this request, it was argued the trial court erred by not dismissing the father’s custody motion for lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), because neither party, nor the child, resided in Michigan. Rather, it was asserted the mother and the child resided in Idaho, while the father resided in Connecticut.

Given these facts, counsel for the mother argued that:
· Michigan did not retain exclusive, continuing jurisdiction under the UCCJEA, specifically MCL 722.1202(1)(b); and
· when a Michigan court lacks exclusive, continuing jurisdiction, in order to modify a child-custody determination it must have jurisdiction to make an initial child-custody determination under the UCCJEA, specifically MCL 722.1201.

In this case, counsel claimed the most recent time the child could have resided in Michigan was 2013 during the father’s parenting time, but only if the father had not yet relocated to Connecticut. However, the record was unclear as to when the father actually moved to Connecticut. Because the child had spent two-and-a-half years in Idaho before the custody action was filed in Calhoun County Circuit Court, counsel maintained that Michigan no longer had the requisite connection for exclusive, continuing jurisdiction.
Meanwhile, it was also argued that, even if the father returned to Michigan and the Calhoun County Circuit Court did have exclusive, continuing jurisdiction, the trial court still committed error by not considering all the factors in MCL 722.1207. This section of the UCCJEA lets a trial court transfer a case because Michigan is an inconvenient forum. And according to counsel, Michigan was an inconvenient forum and the trial court abused its discretion by not transferring the case to Idaho pursuant to §207.
The Court of Appeals agreed with the foregoing arguments. In an order issued by Judges Joel P. Hoekstra, David H. Sawyer, and William B. Murphy, the appeals court said the Calhoun County Circuit Court did not have continuing jurisdiction to hear the custody dispute and vacated the trial court’s order.
In reaching this conclusion, the Court of Appeals simply cited §201 and §202 of the UCCJEA, and did not elaborate further on its reasoning.

The Michigan Supreme Court has directed that, when finalizing adoptions, trial courts must use specific language on the record, indicating that no appeal is pending in the underlying termination of parental rights case.

   Pursuant to an order denying leave to appeal in In re Jackson (Docket No. 152404), the Supreme Court instructed that, based on In re JK, 468 Mich 202 (2003), any trial court finalizing an adoption must include the following on the record:

“I have determined that any appeal of the decision to terminate parental rights has reached disposition, that no appeal, application for leave to appeal, or motion for rehearing or reconsideration is pending, and that the time for all appellate proceedings in this matter has expired.”

   As a result of the Supreme Court’s directive, the State Court Administrative Office has already revised forms PCA 321, PCA 321a, and PCA 321b to reflect the new requirement.

   In Jackson (Docket Nos. 325838 and 325839), the Court of Appeals ruled that the parental rights of the respondent-father and respondent-mother were properly terminated by the Ingham County Circuit Court and the trial court did not err in finding that termination of rights was in the child’s best interests.

   On September 10, 2015, the appeals court denied a motion for reconsideration. On that same day, the Ingham County Circuit Court finalized the child’s adoption.

   Pursuant to MCR 7.215(F)(1)(a), unless otherwise ordered by the Court of Appeals or the Supreme Court, or provided for in the court rules, a Court of Appeals judgment “is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.” The Ingham County Circuit Court violated this rule by forging ahead with the adoption before the Court of Appeals judgment was final.

   Further, MCL 710.56(2) says that, if an appeal of right from an order terminating parental rights has been filed, the trial court “shall not” order an adoption until one of the following occurs:

   On October 6, 2015, the respondent-father timely filed an application for leave to appeal with the Supreme Court. However, appellate counsel did not discover that the trial court had finalized the adoption until after the application was filed. Upon learning this information, appellate counsel immediately notified the Supreme Court clerk.

   After the Supreme Court was informed of the adoption, it issued the order declaring that In re JK had been violated and instructing the trial courts to make certain findings on the record when finalizing adoptions, in order to prevent this type of procedural mistake from again happening.

   Notably, Justice Bridget M. McCormack concurred with the decision to deny leave to appeal in Jackson, but expressed “reservations” about relying on MCL 712A.19b(3)(l) to terminate parental rights. That statute says a court may terminate rights to a child if clear and convincing evidence show that the parent’s rights to another child were also terminated in a prior proceeding. In Jackson, a court had previously terminated the respondent-father’s parental rights to another child.

   According to Justice McCormack, MCL 712A.19b(3)(l) raises “significant constitutional questions” because it creates a presumption that a parent currently before the court is unfit. “When someone is accused of a crime, due process does not permit the state to put forth evidence of a prior conviction as sufficient proof to convict him or her of the new charge,” she said. “I do not see why similar process is not due a parent in jeopardy of losing the constitutional right to control the care and custody of his or her children.”