Mexican Grandmother Wasn’t Acting as a Parent, Court Finds

Can a parent hand their child off to a grandparent to avoid a custody battle in Michigan? Will state, or even country lines, cut you off from being able to exercise your parental rights? A recently published Michigan Court of Appeals decision said that a Mexican grandmother wasn’t acting as a parent to block a Michigan custody case.

Mom Uses Border, Mexican Grandmother to Avoid Custody Battle

Sometimes romantic relationships lead to more lasting connections than parents might like. After Ms. Mayoral-Martinez had a child with Mr. Hernandez, she found herself tied to a man she no longer had feelings for. Hernandez had signed an affidavit of parentage, establishing himself as the child’s legal parent. But Mom didn’t want to fight that battle. Instead, she took the 11-month-old with her to Mexico to visit family in May 2017. But when she returned to Michigan the following November, the child stayed behind with her Mexican grandmother.

Dad filed a Complaint for Custody in Michigan, asking the court to order that the child be returned. Mom told the court she thought Dad was “a threat” to her and the child, and had taken the child to Mexico to keep her from her father. Eventually, the court learned that the child’s grandmother had started some form of custody or guardianship proceeding in Mexico. But it wasn’t clear from the evidence presented whether she had been awarded legal custody of the child.

Rather than arguing over where the child should live, the parents and their attorneys argued over where the case should be heard: here or Mexico. The trial court originally said it did have jurisdiction, but then changed its mind, finding that Mexico was the home state of the child.

UCCJEA Controls Custody Battles Across State (or Country) Borders

Custody and paternity cases don’t always fall neatly within one state or jurisdiction. In an increasingly mobile society, parents move children across state lines all the time. Michigan, and every other U.S. state, has a law controlling when its courts will hear these inter-state custody cases, and when they will defer to decisions made in other states. In Michigan, that statute is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

In most cases, the UCCJEA says a custody case should be heard in the child’s “home state”. This is the location where “a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of the child-custody proceeding.” In other words, wherever the child has established his or her home, that state will have control over initial requests for custody and parenting time.

But a court can still hear an out-of-state case when a child has recently moved, or when — like here — the court finds that the person with whom the child is living doesn’t count as a parent. In Hernandez v Mayoral-Martinez, the Michigan Court of Appeals looked at whether the child’s Mexican grandmother counted as a parent under the UCCJEA. It clarified that physical custody of a child is not enough to establish jurisdiction. A person must also have been awarded legal custody by a court or have a claim to legal custody under Michigan law. Without knowing more about the grandmother’s custody or guardianship case resolved, the court could not determine whether she was “a person acting as a parent” to cut off a Michigan custody battle.

Grandparents’ Rights to Custody Over Parents

Hernandez presents an interesting question: whether the UCCJEA can allow grandparents’ custody to interfere with a parent’s custodial rights. If the child’s grandmother had filed her petition for guardianship in Michigan, the child’s father would have been entitled to notice of the proceedings and a chance to object. But Mr. Herndandez may not have had the same rights in a Mexico court. The Michigan Court of Appeals said that even if the child’s home state was not Michigan, the circumstances show that she had significant ties to the state to allow the case to continue here.

But if, instead, the child’s grandmother was able to establish custody in Mexico without notifying the child’s father, it could have the effect of cutting off the father’s parental rights without notice or a hearing. Once that initial custody determination was made, the UCCJEA would give Mr. Hernandez only limited power to ask the Michigan court to reconsider custody under the state’s law. Instead, he may end up having to fight for his child thousands of miles away in Mexico.

The UCCJEA helps to establish a predictable pattern for inter-state custody issues. It gives judges, lawyers, and parents a template to know where to file their cases. But when one parent uses state or international borders as walls, the jurisdictional limits of the UCCJEA can sometimes cut parents off from their children and make it hard to exercise their parental rights.


Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps families in Metro Detroit address and resolve child custody and paternity issues. If you need help modifying or enforcing a child custody order, contact Schmidt & Long to schedule a consultation.