This case involves parties who, after living in Michigan for several years, returned to their native country of India in 2014 with their three children. In 2016, plaintiff returned to Michigan and filed for divorce.
Plaintiff claims that she never intended to remain in India, despite her lengthy stay from 2014 to 2016, and that defendant had promised that she and the children could return to Michigan if they did not like India. According to plaintiff, defendant would not allow her and the children to return to Michigan. She claimed that defendant and his family members physically abused her and prevented her from leaving. Plaintiff also claimed that she was not able to return to the United States on her own because defendant controlled all of the family’s assets and finances.
Plaintiff was eventually able to obtain an emergency passport from the American consulate, and on March 22, 2016, she returned to the United States.
On April 5, 2016, plaintiff filed a complaint for divorce in Oakland County. It is undisputed that the children were still living in India at this time, and that they had not lived in the United States since May 2014. The children remained with defendant in India throughout the pendency of this case, despite the trial court’s orders that they were to be returned to plaintiff’s custody in Michigan.
Defendant, who remained in India, challenged the trial court’s subject-matter jurisdiction on the ground that plaintiff failed to meet the statutory residency requirements, MCL 552.9(1), before bringing this divorce action in Michigan. Defendant also argued that the trial court did not have jurisdiction to make a custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq., because Michigan was not the children’s home state under the act.
The focus of the UCCJEA concerns a child’s actual presence, not his or her intent to remain. In sum, because it is undisputed that the children had lived with a parent in India for more than six consecutive months, almost two years immediately before plaintiff filed this action, India, and not Michigan, qualifies as the children’s home state under the UCCJEA. Therefore, regardless of whether the children properly could be considered residents of Michigan because they intended to return there, the trial court erred when it found that it had jurisdiction over the parties’ custody dispute under the UCCJEA.
In sum, this court affirms the trial court’s decision regarding subject-matter jurisdiction over this divorce action, but reverse the trial court’s decision regarding jurisdiction over the children under the UCCJEA and vacate the portion of the trial court’s judgment pertaining to child custody.
If you are going through a divorce or are separating from the mother or father of your children, it is important to protect your custodial rights. Seek the advice and guidance of an experienced family law and divorce attorney who will be by your side every step of the way.