When a relationship breaks down, one or the other parent often has to make a move. Whether one partner goes to another county to live with family, or has to leave the state, it can raise questions of where you should file your divorce or custody case to move your family forward.
Where a case is filed may seem like no big deal, but Michigan, like most other states, has residency restriction you must meet before its family courts can hear your case. If you file in the wrong county or state, your case could be dismissed.That makes it important to get the location right the first time.
Legalese About Where to File
Lawyers like to use strange words for things, which we jokingly call legalese. But when it comes to where to file, the terminology becomes important.
Jurisdiction means authority to hear a case. If a court doesn’t have jurisdiction over a person (for example, because he or she doesn’t have any contact with the state), or the issue at hand (called subject matter jurisdiction), it is absolutely not allowed to enter an order that affects the issue. The term also sometimes refers to the geographic area over which the court presides. In state courts, the geographic jurisdiction is statewide, even though there are dozens of different circuit courts within the state.
Venue has to do with which court within the jurisdiction is in the best position to hear the case. It is a matter of convenience to the parties, and is related to where evidence and witnesses can most easily be found. More than one court may be a proper venue for a case. In family court, venue often relates to where one parent lives at the start of the case.
Where to File Your Divorce Action
For a Circuit Court to have jurisdiction over your Michigan divorce action, you or your spouse must have lived in the State of Michigan for at least 180 days (6 months) and in the county where you file for at least 10 days at the start of the case. This is based on where you reside — where you live with the intent to remain. Because divorce involves transition, it can sometimes take some time to establish your new residence. In these cases, you may have to file your divorce in the county where you lived before you separated.
Home State Jurisdiction over Child Custody
Things always get more complicated in family law when there are children are involved. Imagine what could happen if two different states’ courts entered conflicting orders controlling the custody of a single child. Where would the children go? How would police know who was in the right?
To solve this, Michigan, and most other states, have adopted a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It lays out which court has jurisdiction over children who cross state lines. At its core, this boils down to the child’s “home state”. Michigan is the home state of the child if he or she and one parent have lived here for at least 6 months consecutively (or since birth for infants under 6 months). If the child has been here less than 6 months, the home state is the last place the child lived for at least 6 months as long as a parent is still there.
Family law cases take all forms, and sometimes there isn’t a clear home state. When no state has “home state jurisdiction”, a Michigan court is able to enter custody orders if the child and at least one parent has significant connections here. This has to do with where information connected with the child exists.
It is important to note that the UCCJEA applies to all custody orders — whether the parents are getting divorced or not. Divorces with children can sometimes be forced into inconvenient courts because one parent remains in the child’s previous home state.
Emergency Jurisdiction for Survivors of Abuse
In domestic violence cases, if a parent and child have fled to Michigan to avoid mistreatment or abuse, the court can sometimes exercise temporary emergency jurisdiction. For many survivors, this temporary solution extends the time it takes to finalize their divorce or custody case. The temporary order can be entered as a hold-over until Michigan becomes child’s home state and it can exercise traditional jurisdiction. In other cases, this temporary order is used until the survivor parent can safely return the child’s home state and file there.
Parents often want “emergency jurisdiction” to stretch farther than it does. The court cannot enter an order because a new job has arisen, a natural disaster caused an evacuation, or because it would be easier to file here in Michigan. Unless there are threats or actual evidence of abuse, parents will need to return to the home state or wait for the 6 months to run.
Knowing where to file your divorce or custody action isn’t always as easy as it may seem. Waiting periods and inter-state issues can mean you will need to wait to file or head back to another jurisdiction. If you have recently moved, talk to an experienced family lawyer to figure out when and where to file your complaint.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps parents resolve divorce and custody matters even when multiple states are involved. If you have a question about where to file, contact Schmidt & Long to schedule a consultation today.