8.6Parental Abductions or Flight

In cases where domestic violence is present, both the abuser and the victim may be at risk for taking physical control over his or her child in violation of a court order for custody or parenting time.

If a child is abducted or restrained, the Federal Parent Locator Service (FPLS), 42 USC 653, which is a national computer matching system operated by the Federal Office of Child Support Enforcement, may be used to obtain and transmit information for enforcing any federal or state law regarding the unlawful taking or restraint of a child. 42 USC 652(a); 42 USC 653(a).¹ 

A.Interstate Enforcement of Child-Custody Orders

1.Parental Kidnapping Prevention Act (PKPA)

This sub-subsection provides a general overview of the Parental Kidnapping Prevention Act (PKPA), 28 USC 1738A. For additional information on the PKPA, see 28 USC 1738A.

The PKPA “extend[s] full faith and credit requirements to child custody orders[.]” Thompson v Thompson, 484 US 174, 183, 187 (1988) (the PKPA is addressed to state courts and does not provide a private cause of action in federal court to determine the validity of conflicting custody decrees). Specifically,

“The [PKPA] imposes a duty on the States to enforce a child custody determination entered by a court of a sister State if the determination is consistent with the provisions of the [PKPA]. In order for a state court’s custody decree to be consistent with the provisions of the [PKPA], the State must have jurisdiction under its own local law and one of five conditions set out in [28 USC] 1738A(c)(2) must be met. Briefly put, these conditions authorize the state court to enter a custody decree if the child’s home is or recently has been in the State, if the child has no home State and it would be in the child’s best interest for the State to assume jurisdiction, or if the child is present in the State and has been abandoned or abused. Once a State exercises jurisdiction consistently with the provisions of the [PKPA], no other State may exercise concurrent jurisdiction over the custody dispute, [28 USC] 1738A(g), even if it would have been empowered to take jurisdiction in the first instance, and all States must accord full faith and credit to the first State’s ensuing custody decree.” Thompson, 484 US at 175-177.

“Although the title of the [PKPA] refers to ‘parental kidnapping,’ and concerns about parents taking children out of a state in violation of a custody order were doubtless an important impetus for the enactment of the statute, [the PKPA] applies to any custody determination[.]” In re Clausen, 442 Mich 648, 656, 658-659, 664 n 20 (1993) (the PKPA precluded the Michigan court from exercising jurisdiction in the adoptive parents’ action for modification of Iowa court orders that terminated the adoptive parents’ rights as temporary guardians, denied the adoptive parents’ their adoption petition, and directed that the biological parents retain custody).

2.Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)²

This sub-subsection provides general guidance as to when a Michigan court may exercise jurisdiction in a child custody dispute under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. For additional information on the UCCJEA, see MCL 722.1101–MCL 722.1406, and the National Conference of Commissioners on Uniform State Laws website and the Michigan Judicial Institute’s UCCJEA checklists.

The UCCJEA prescribes the court’s powers and duties in a child-custody proceeding that involves this state and a proceeding or party outside of this state.³

Note: The UCCJEA contains provisions regarding filing and registering a state’s custody decrees, judgments, and orders; communication between courts of different states; petition requirements; notice and service of process; evidence; and enforcement of another state’s decree, judgment, or order. Subchapter 3.200 of the Michigan Court Rules, which governs domestic relations actions, applies to actions for custody or parenting time under the UCCJEA; the subchapter also applies to an expedited proceeding to register a foreign judgment or order under the UCCJEA, and to any ancillary or subsequent proceedings related to custody, parenting time, or support. MCR 3.201(A).

“[T]he trial court [is] required to find that it [has] jurisdiction under the UCCJEA in order to make a custody determination.” Ramamoorthi v Ramamoorthi, 323 Mich App 324, 336 (2018). “To exercise jurisdiction, the trial court was required to find that either Michigan was a home state, that another home state had decided not to exercise jurisdiction, that all other states having jurisdiction had declined on the ground that Michigan was a more appropriate forum, or that no other home state existed.” Id. at 336-337 (finding that “the focus of the UCCJEA concerns a child’s actual presence, not his or her intent to remain” in Michigan; “[t]herefore, 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” because “the children had ‘lived with’ a parent in India for more than six consecutive months . . . immediately before [the] plaintiff filed [the] action,” and thus India, not Michigan, “qualifie[d] as the children’s home state under the UCCJEA”). For information on when a court has jurisdiction, see MCL 722.1201 (initial child-custody determination), MCL 722.1202 (continuing jurisdiction), MCL 722.1203 (modifying out-of-state child custody determination); and MCL 722.1204 (temporary emergency jurisdiction).

A Michigan trial court is not required to afford full faith and credit to another state’s child-custody order when the other state lacked subject-matter jurisdiction over the case under the UCCJEA. Nock v Miranda-Bermudez, 347 Mich App 623, 632, 633 (2023) (California lacked subject-matter jurisdiction over a custody dispute when the defendant filed for custody in California more than six months after the plaintiff moved the children with her to Michigan, making Michigan the home state for purposes of the UCCJEA and authorizing the Michigan trial court to issue orders concerning custody of the parties’ children).

The UCCJEA defines a child custody proceeding as “a proceeding in which legal custody, physical custody, or parenting time with respect to a child is an issue.” MCL 722.1102(d). Child custody proceedings include proceedings for:

•divorce, separate maintenance, and separation;

•neglect, abuse, and dependency;

•guardianship matters;

•paternity and termination of parental rights; and

•protection from domestic violence.⁴ MCL 722.1102(d).

In the first pleading in a child custody case or in an attached sworn statement, and in a petition for enforcement of a child custody determination, each party must state, among other things, whether he or she knows of a proceeding that could affect the child custody case or enforcement proceeding, including a “proceeding relating to domestic violence, a protective order, termination of parental rights, or adoption, and if so, identify the court, the case number, and the nature of the proceeding.” MCL 722.1209(1)(b) (jurisdiction). See also MCL 722.1307(2)(c) (enforcement), which contains substantially similar language. See MCR 3.206(B), which requires the filing party to file an UCCJEA Affidavit for a custody or parenting time dispute as required by MCL 722.1209(1).

Note: The parties have a continuing duty to keep the court informed of any proceedings “in this or another state that could affect the current child-custody proceeding.” MCL 722.1209(4).

“If a party alleges in a sworn statement or a pleading under oath that a party’s or child’s health, safety, or liberty would be put at risk by the disclosure of identifying information, the court shall seal and not disclose that information to the other party or the public unless the court orders the disclosure after a hearing in which the court considers the party’s or child’s health, safety, and liberty and determines that disclosure is in the interest of justice.” MCL 722.1209(5).

For purposes of the UCCJEA, “[a] child-custody proceeding that pertains to an Indian child as defined in the Indian [C]hild [W]elfare [A]ct [(ICWA), 25 USC 1901 et seq.], is not subject to [the UCCJEA] to the extent that the proceeding is governed by the [ICWA].” MCL 722.1104(1). Where the UCCJEA does apply to an Indian child:

•a Michigan court must treat a tribe in the same manner it would treat another state for the purposes of the general and jurisdictional provisions of the UCCJEA contained in MCL 722.1101–MCL 722.1210. MCL 722.1104(2).

•a child-custody determination made by the tribe must be recognized and enforced under the enforcement provisions of the UCCJEA contained in MCL 722.1301–MCL 722.1316 if the tribe’s child-custody determination was made “under factual circumstances in substantial conformity with the jurisdictional standards of [the UCCJEA][.]” MCL 722.1104(3).

a.Temporary Emergency Jurisdiction

For purposes of child custody proceedings, a Michigan court may exercise temporary emergency jurisdiction over a child in certain circumstances.⁵ See MCL 722.1204. A Michigan court obtains temporary emergency jurisdiction when the child is present in this state and:

•the child has been abandoned; or

•the child, the child’s sibling, or the child’s parent is being mistreated or abused or being threatened with mistreatment or abuse. MCL 722.1204(1).

MCL 722.1204(1) “requires that a child be ‘present in this state’ for it to apply.” Ramamoorthi v Ramamoorthi, 323 Mich App 324, 336 (2018) (because the children were not present in Michigan at the time the custody dispute commenced, MCL 722.1204(1) was not applicable).

A Michigan court with jurisdiction to make a child-custody determination “may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.”⁶ MCL 722.1207(1).⁷ “Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child” is one of several factors the court must consider when “determining whether it is an inconvenient forum[.]” MCL 722.1207(2)(a).

If a court has temporary emergency jurisdiction over a child and a proceeding has been commenced in or a custody determination has been made by another state’s court that is eligible for enforcement under the UCCJEA,⁸ the Michigan court must immediately communicate with the court in the other state in order to “resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration for the temporary order.” MCL 722.1204(4). A Michigan court must engage in this communication before the Michigan court may decline to exercise jurisdiction over the child. In re J Thornhill, ___ Mich ___, ___ (2023). Without having communicated with another state involved with a child’s custody before deciding against exercising temporary emergency jurisdiction, “the court lacked sufficient knowledge to make a meaningful determination as to whether to exercise emergency jurisdiction in light of the abuse in Michigan.” Id. at ___. Specifically, the Michigan court “did not know whether the emergency was over or ongoing [and it] did not know . . . whether [the other state’s] courts intend[ed] to exercise jurisdiction over the minor child in light of the abuse in Michigan or whether they believe[d] that Michigan [was] the more appropriate forum for any proceedings.” Id. at ___.

In addition, the Michigan court’s order must specify a time period during which it will remain in effect. MCL 722.1204(3). The time period must be adequate to allow a person to seek an order from the other state’s court. Id. 

If there is no previous child-custody determination eligible for enforcement or no commencement of a child custody proceeding in another state, entry of the Michigan court’s order during the temporary emergency will remain in effect until entry of an order by another court having jurisdiction. MCL 722.1204(2). If a child-custody proceeding has not been, or is not, commenced in another state’s court with jurisdiction over the matter, the determination made by the Michigan court during the temporary emergency becomes the final child-custody determination, if the Michigan court intends its determination to be final and Michigan becomes the child’s home state. Id.

b.Unjustifiable Conduct

MCL 722.1208(1) requires, in certain circumstances, the court to decline jurisdiction if it finds out that the petitioner has engaged in unjustifiable conduct:

“Except as otherwise provided in [MCL 722.1204 (temporary emergency jurisdiction)] or by other [Michigan] law . . ., if a [Michigan] court . . . has jurisdiction under [the UCCJEA]^[9] because a person invoking the court’s jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless the court finds 1 or more of the following:

(a) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction.

(b) A court of the state otherwise having jurisdiction under [MCL 722.1201] to [MCL 722.1203] determines that [Michigan] is a more appropriate forum under [MCL 722.1207].

(c) No court of another state would have jurisdiction under [MCL 722.1201] to [MCL 722.1203].” MCL 722.1208(1).

“If a [Michigan] court . . . declines to exercise its jurisdiction under [MCL 722.1208(1)], the court may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child-custody proceeding is commenced in a court having jurisdiction under [MCL 722.1201] to [MCL 722.1203].” MCL 722.1208(2).

“Domestic violence victims should not be charged with unjustifiable conduct for conduct that occurred in the process of fleeing domestic violence, even if their conduct is technically illegal. Thus, if a parent flees with a child to escape domestic violence and in the process violates a joint custody decree, the case should not be automatically dismissed under [MCL 722.1208]. An inquiry must be made into whether the flight was justified under the circumstances of the case. However, an abusive parent who seizes the child and flees to another State to establish jurisdiction has engaged in unjustifiable conduct and the new State must decline to exercise jurisdiction under [MCL 722.1208].” National Conference of Commissioners on Uniform State Laws, Uniform Child Custody Jurisdiction and Enforcement Act (1997), Section 208, Comment, p 43.

c.Warrant to Take Physical Custody of Child

On a petitioner’s request,¹⁰ a Michigan court may issue a warrant to take a child into custody if it appears likely that a child will suffer imminent physical harm or will be removed from the state. MCL 722.1310(2). “A warrant to take physical custody of a child must include at least the following: (a) [a] recitation of the facts upon which a conclusion of serious imminent physical harm or imminent removal from the jurisdiction is based[,] (b) [a]n order directing law enforcement officers to take physical custody of the child immediately[,] (c) [p]rovisions for the placement of the child pending final relief.” MCL 722.1310(3). “A warrant issued under [MCL 722.1310] must include the statements required in an enforcement petition by [MCL 722.1307][,]” which requires, among others, a statement on “[w]hether a proceeding has been commenced that could affect the current proceeding, including a proceeding relating to domestic violence, a protective order, termination of parental rights, or adoption, and if so, identify the court, case number, and nature of the proceeding.” MCL 722.1307(2)(c); MCL 722.1310(2).

Note: If the court issues a warrant, the court must hold a hearing on the petition for enforcement of a child-custody determination the “next judicial day after the warrant is executed.” MCL 722.1310(2).

d.Promoting Safety in Domestic Violence Cases Under the UCCJEA

In interstate cases involving domestic violence, the court can decrease the risk of violence by utilizing procedures available under the UCCJEA:

•Maintain separation of the parties while gathering evidence.

The UCCJEA permits “an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state.” MCL 722.1111(2). The court may also “request the appropriate court of another state to do any of the following:

(a) Hold an evidentiary hearing.

(b) Order a person to produce or give evidence under procedures of that state.

(c) Order that an evaluation be made with respect to custody of a child involved in a pending proceeding.

(d) Forward to the [Michigan] court . . . a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and an evaluation prepared in compliance with the request.

(e) Order a party to a child-custody proceeding or a person having physical custody of the child to appear in the proceeding with or without the child.” MCL 722.1112(1).

•Ensure safety of parties ordered to appear at a hearing.

The court may order a party to a child-custody proceeding to appear before the court personally with or without the child. MCL 722.1210(1)-(2).¹¹ The court may also order a person who is in Michigan and who has physical custody of the child to physically appear with the child. MCL 722.1210(1). Under the UCCJEA, “[t]he court may enter any orders necessary to ensure the safety of the child or of a person ordered to appear under [MCL 722.1210].” MCL 722.1210(3).

3.Uniform Child Abduction Prevention Act (UCAPA)

This sub-subsection provides a general overview of the Uniform Child Abduction Prevention Act (UCAPA), MCL 722.1521 et seq. For additional information on the UCAPA, see MCL 722.1521–MCL 722.1532.

The UCAPA authorizes the court to impose child abduction prevention measures in child-custody proceedings.¹² See MCL 722.1524(1); MCL 722.1528(2). MCL 722.1522(a) defines abduction as “the wrongful removal or wrongful retention of a child.”¹³

The UCAPA defines child-custody proceeding as “a proceeding in which legal custody, physical custody, or visitation with respect to a child is at issue.” MCL 722.1522(d). Child-custody proceedings include proceedings for:

•divorce;

•dissolution of marriage;

•separation;

•neglect;

•abuse;

•dependency;

•guardianship;

•paternity;

• termination of parental rights; or

•protection from domestic violence. MCL 722.1522(d).

a.Initiation of Proceedings

Under the UCAPA, MCL 722.1524 permits:

“(1) A court on its own motion [to] order abduction prevention measures in a child-custody proceeding if the court finds that the evidence establishes a credible risk of abduction of the child.

(2) A party to a child-custody determination or another individual or entity having a right under the law of this state or any other state to seek a child-custody determination for the child [to] file a petition seeking abduction prevention measures to protect the child under this act.

(3) A prosecutor or the attorney general [to] seek a warrant to take physical custody of a child under [MCL 722.1529] or other appropriate prevention measures.”

b.Filing of Petition Where Court has Jurisdiction

“A petition under [the UCAPA] may be filed only in a court that has jurisdiction to make a child-custody determination with respect to the child at issue under the [UCCJEA][.]” MCL 722.1525(1).

“[I]f the court finds a credible risk of abduction[,]” a Michigan court has temporary emergency jurisdiction under the UCCJEA, MCL 722.1204. MCL 722.1525(2).

For additional information on a Michigan court exercising temporary emergency jurisdiction over a child under the UCCJEA, see Section 8.6(A)(2)(a).

c.Petition Requirements

“A petition under [the UCAPA] shall be verified and include a copy of any existing child-custody determination, if available. The petition shall specify the risk factors for abduction, including the relevant factors described in [MCL 722.1527¹⁴]. Subject to [MCL 722.1209(5)¹⁵], . . . if reasonably ascertainable, the petition must contain all of the following:

(a) The name, date of birth, and gender of the child.

(b) The customary address and current physical location of the child.

(c) The identity, customary address, and current physical location of the respondent.

(d) A statement of whether a prior action to prevent abduction or domestic violence has been filed by a party or other individual or entity having custody of the child, and the date, location, and disposition of the action.

(e) A statement of whether a party to the proceeding has been arrested for a crime related to domestic violence, stalking, or child abuse or neglect, and the date, location, and disposition of the case.

(f) Information regarding any protection order previously entered involving either party or the child.

(g) Any other information required to be submitted to the court for a child-custody determination under . . . MCL 722.1209.” MCL 722.1526.

d.Risk Factors for Potential Child Abduction

“In determining whether there is a credible risk of abduction of a child, the court shall consider any evidence that the petitioner or respondent has done any of the following or that any of the following apply to the petitioner or respondent:

(a) Previously abducted or attempted to abduct the child.

(b) Threatened to abduct the child.

(c) Except for planning activities related to providing for the safety of a party or the child while avoiding or attempting to avoid domestic violence, recently engaged in activities that may indicate a planned abduction, including any of the following:

(i) Abandoning employment.

(ii) Selling a primary residence.

(iii) Terminating a lease.

(iv) Closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents, or conducting any unusual financial activities.

(v) Applying for a passport or visa or obtaining travel documents for the respondent, a family member, or the child.

(vi) Applying for or obtaining an enhanced driver license or enhanced official state personal identification card for the respondent, a family member, or the child.

(vii) Seeking to obtain the child’s birth certificate or school or medical records.

(d) Engaged in domestic violence, stalking, or child abuse or neglect.

(e) Refused to follow a child-custody determination.

(f) Lacks strong familial, financial, emotional, or cultural ties to this state or the United States.

(g) Has strong familial, financial, emotional, or cultural ties to another state or country.

(h) Is likely to take the child to a country to which any of the following apply:

(i) The country is not a party to the Hague convention on the civil aspects of international child abduction^[16] and does not provide for the extradition of an abducting parent or for the return of an abducted child.

(ii) The country is a party to the Hague convention on the civil aspects of international child abduction but 1 or more of the following apply:

(A) The Hague convention on the civil aspects of international child abduction is not in force between the United States and the country.

(B) The country is noncompliant according to the most recent compliance report issued by the United States department of state.

(C) The country lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague convention on the civil aspects of international child abduction.

(iii) The country poses a risk that the child’s physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children.

(iv) The country has laws or practices that would do 1 or more of the following:

(A) Enable the respondent, without due cause, to prevent the petitioner from contacting the child.

(B) Restrict the petitioner from freely traveling to or exiting from the country because of the petitioner’s gender, nationality, marital status, or religion.

(C) Restrict the child’s ability legally to leave the country after the child reaches the age of majority because of the child’s gender, nationality, or religion.

(v) The country is included by the United States department of state on a current list of state sponsors of terrorism.

(vi) The country does not have an official United States diplomatic presence in the country.

(vii) The country is engaged in active military action or war, including a civil war, to which the child may be exposed.

(i) Is undergoing a change in immigration or citizenship status that would adversely affect the respondent’s ability to remain in the United States legally.

(j) Has had an application for United States citizenship denied.

(k) Has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a social security card, a driver license, or other government-issued identification card or has made a misrepresentation to the United States government.

(l) Has used multiple names to attempt to mislead or defraud.

(m) Has engaged in any other conduct the court considers relevant to the risk of abduction.” MCL 722.1527(1).

e.Hearing on Petition

“If, at a hearing on a petition under [the UCAPA] or on the court’s own motion, the court after reviewing the evidence finds a credible risk of abduction of the child, the court shall enter an abduction prevention order.” MCL 722.1528(2).

If the court finds during the hearing that “the respondent’s conduct was intended to avoid domestic violence or imminent harm to the child or the respondent, the court shall not issue an abduction prevention order.” MCL 722.1527(2).

f.Issuing an Abduction Prevention Order

“If a petition is filed under [the UCAPA], the court may enter an order.”¹⁷ MCL 722.1528(1). If the court issues an abduction prevention order, the order must “include the provisions required by [MCL 722.1528(1)] and measures and conditions, including those in [MCL 722.1528(3)-(5)], that are reasonably calculated to prevent abduction of the child, giving due consideration to the custody and visitation rights of the parties and the safety of the parties and the child.” MCL 722.1528(2).

When issuing the order, the court must take into consideration “the age of the child, the potential harm to the child from an abduction, the legal and practical difficulties of returning the child to the jurisdiction if abducted, and the reasons for the potential abduction, including evidence of domestic violence, stalking, or child abuse or neglect.”¹⁸ MCL 722.1528(2).

MCL 722.1528(1) sets out certain information that must be included in the abduction prevention order:

“(a) The basis for the court’s exercise of jurisdiction.

(b) The manner in which notice and opportunity to be heard were given to the persons entitled to notice of the proceeding.

(c) A detailed description of each party’s custody and visitation rights and residential arrangements for the child.

(d) A provision stating that a violation of the order may subject the party in violation to civil and criminal penalties.

(e) Identification of the child’s home state or country of habitual residence at the time of the issuance of the order.”

MCL 722.1528(3)-(4) set out additional information that may be included in the abduction prevention order:

“(3) An abduction prevention order may include 1 or more of the following:

(a) An imposition of travel restrictions that require that a party traveling with the child outside a designated geographical area provide the other party with all of the following:

(i) The travel itinerary of the child.

(ii) A list of physical addresses and telephone numbers at which the child can be reached at specified times.

(iii) Copies of all travel documents.

(b) A prohibition of the respondent directly or indirectly doing any of the following:

(i) Removing the child from this state, the United States, or another geographic area without permission of the court or the petitioner’s written consent.

(ii) Removing or retaining the child in violation of a child-custody determination.

(iii) Removing the child from school or a child care or similar facility.

(iv) Approaching the child at any location other than a site designated for supervised visitation.

(c) A requirement that a party register the order in another state as a prerequisite to allowing the child to travel to that state.

(d) With regard to the child’s passport, any of the following:

(i) A direction that the petitioner place the child’s name in the United States department of state’s child passport issuance alert program.

(ii) A requirement that the respondent surrender to the court or the petitioner’s attorney any United States or foreign passport issued in the child’s name, including a passport issued in the name of both the parent and the child.

(iii) A requirement that the respondent surrender to the court or the petitioner’s attorney his or her enhanced driver license or enhanced official state personal identification card issued in the child’s name.

(iv) A prohibition on the respondent applying on behalf of the child for a new or replacement passport or visa.

(e) As a prerequisite to exercising custody or visitation, a requirement that the respondent provide 1 or more of the following:

(i) To the United States department of state office of children’s issues and the relevant foreign consulate or embassy, an authenticated copy of the order detailing passport and travel restrictions for the child.

(ii) To the court, 1 or both of the following:

(A) Proof that the respondent has provided the information in subparagraph (i).

(B) An acknowledgment in a record from the relevant foreign consulate or embassy that no passport application has been made, or passport issued, on behalf of the child.

(iii) To the petitioner, proof of registration with the United States embassy or other United States diplomatic presence in the destination country and with the central authority for the Hague convention on the civil aspects of international child abduction, if that convention is in effect between the United States and the destination country, unless 1 of the parties objects.

(iv) A written waiver under 5 USC 552a, popularly known as the privacy act, with respect to any document, application, or other information pertaining to the child authorizing its disclosure to the court and the petitioner.

(f) On the petitioner’s request, a requirement that the respondent obtain an order from the relevant foreign country containing terms identical to the child-custody determination issued in the United States.

(4) In an abduction prevention order, the court may impose conditions on the exercise of custody or visitation that do 1 or more of the following:

(a) Limit visitation or require that visitation with the child by the respondent be supervised until the court finds that supervision is no longer necessary and order the respondent to pay the costs of supervision.

(b) Require the respondent to post a bond or provide other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay for the reasonable expenses of recovery of the child, including reasonable attorney fees and costs if there is an abduction.

(c) Require the respondent to obtain education on the potentially harmful effects to the child from abduction.”

g.Steps That May be Taken to Prevent Imminent Abduction

“To prevent imminent abduction of a child,” MCL 722.1528(5) permits the court to “do 1 or more of the following:

(a) Issue a warrant to take physical custody of the child under [MCL 722.1529¹⁹] or other law of this state.

(b) Direct the use of law enforcement to take any action reasonably necessary to locate the child, obtain return of the child, or enforce a custody determination under this act or other law of this state.

(c) Grant any other relief allowed under law of this state.”

“The remedies provided in [the UCAPA] are cumulative and do not affect the availability of other remedies to prevent abduction.” MCL 722.1528(6).

h.Ex Parte Warrant to Take Physical Custody of Child

“If a petition under [the UCAPA] alleges and the court finds that there is a credible risk that the child is imminently likely to be wrongfully removed,^[20] the court may issue an ex parte warrant to take physical custody of the child.” MCL 722.1529(1). “If feasible, before issuing an ex parte warrant and before determining the placement of the child after the warrant is executed, the court may order a search of the relevant databases of the national crime information center system and similar state databases to determine if either the petitioner or [the] respondent has a history of domestic violence, stalking, or child abuse or neglect.” MCL 722.1529(4).

Note: “A warrant to take physical custody of a child, issued [in Michigan] or another state, is enforceable throughout [Michigan].” MCL 722.1529(6).

In issuing the ex parte warrant under MCL 722.1529(1), the warrant must:

“(a) Recite the facts on which a determination of a credible risk of imminent wrongful removal of the child is based.

(b) Direct law enforcement officers to take physical custody of the child immediately.

(c) State the date and time for the hearing on the petition.

(d) Provide for the safe interim placement of the child pending further order of the court.” MCL 722.1529(3).

“If the court finds that a less intrusive remedy will not be effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances, the court may authorize officers to make a forcible entry at any hour.” MCL 722.1529(6).

The respondent must be served with the petition and ex parte warrant “when or immediately after the child is taken into physical custody.” MCL 722.1529(5). The respondent must be given an opportunity “to be heard at the earliest possible time after the ex parte warrant is executed, but not later than the next judicial day unless a hearing on the date is impossible[; i]f a hearing on the next judicial day is impossible, the court shall hold the hearing on the first judicial day possible.” MCL 722.1529(2).

If the court determines after a hearing on the petition is held that “[the] petitioner sought an ex parte warrant under [MCL 722.1529(1)] for the purpose of harassment or in bad faith, the court may award the respondent reasonable attorney fees, costs, and expenses.” MCL 722.1529(7).

“[The UCAPA] does not affect the availability of relief allowed under other [Michigan law].” MCL 722.1529(8).

i.Entry of Abduction Prevention Order

“An abduction prevention order remains in effect until the earliest of the following:

(a) The time stated in the order.

(b) The emancipation of the child.

(c) The child’s attaining 18 years of age.

(d) The time the order is modified, revoked, vacated, or superseded by a court with jurisdiction under [the UCCJEA], or other applicable law of this state.” MCL 722.1530.

B.International Abductions

A brief discussion on international abductions is contained in this subsection. For additional information on international abductions, see the United States Department of State International Parental Child Abduction website.

When a child is brought into the United States from another country, two civil remedies are available in Michigan courts to secure access to the child:

•The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq., which requires Michigan courts to enforce foreign nation custody decrees that meet the UCCJEA’s jurisdictional and notice standards. MCL 722.1105(2).

•The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), implemented by the International Child Abduction Remedies (ICAR), 42 USC 11601 et seq., which permits a party in a foreign nation to seek the return of a child under 16 who has been wrongfully taken from the nation of his or her habitual residence and brought to the United States. The Hague Convention also provides for the enforcement of visitation rights to children in the United States. Hague Convention, Article 4; 42 USC 11601(a)(4).

1.Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)²¹ 

For purposes of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq., a Michigan court must treat a foreign country in the same manner it would treat another state for the purposes of the general and jurisdictional provisions of the UCCJEA contained in MCL 722.1101-MCL 722.1210. MCL 722.1105(1).²² 

A child-custody determination made in a foreign country must be recognized and enforced under the enforcement provisions of the UCCJEA contained in MCL 722.1301–MCL 722.1316 if the foreign child-custody determination was made “under factual circumstances in substantial conformity with the jurisdictional standards of [the UCCJEA][,]” unless “the child-custody law of [the] foreign country violates fundamental principles of human rights.” MCL 722.1105(2)-(3).

Note: For purposes of the UCCJEA, “[a] child-custody proceeding that pertains to an Indian child as defined in the Indian [C]hild [W]elfare [A]ct [(ICWA), 25 USC 1901 et seq.], . . . is not subject to [the UCCJEA] to the extent that the proceeding is governed by the [ICWA].” MCL 722.1104(1). Where the UCCJEA does apply to an Indian child:

•a Michigan court must treat the tribe in the same manner it would treat another state for the purposes of the general and jurisdictional provisions of the UCCJEA contained in MCL 722.1101–MCL 722.1210. MCL 722.1104(2).

•a child-custody determination made by the tribe must be recognized and enforced under the enforcement provisions of the UCCJEA contained in the MCL 722.1301–MCL 722.1316 if the tribe’s child-custody determination was made “under factual circumstances in substantial conformity with the jurisdictional standards of [the UCCJEA][.]” MCL 722.1104(3).

MCL 722.1302(1) permits Article 3 (the enforcement article) of the UCCJEA, MCL 722.1301–MCL 722.1316, to “be invoked to enforce 1 or both of the following:

(a) A child-custody determination.

(b) An order for the return of a child made under the Hague [C]onvention on the [C]ivil [A]spects of [I]nternational [C]hild [A]bduction.”²³

MCL 722.1314 addresses specific enforcement procedures in cases arising under the UCCJEA:

“In a case arising under [the UCCJEA] or involving the Hague [C]onvention on the [C]ivil [A]spects of [I]nternational [A]bduction, a prosecutor or the attorney general^[24] may take any lawful action, including resort to a proceeding under [Article 3 (the enforcement article) of the UCCJEA, MCL 722.1301–MCL 722.1316,] or another available civil proceeding, to locate a child, obtain the return of a child, or enforce a child-custody determination if there is 1 or more of the following:

(a) An existing child-custody determination.

(b) A request from a court in a pending child-custody proceeding.

(c) A reasonable belief that a criminal statute has been violated.

(d) A reasonable belief that the child has been wrongfully removed or retrained in violation of the Hague [C]onvention on the [C]ivil [A]spects of [I]nternational [C]hild [A]bduction.”

Note: “At the request of a prosecutor or the attorney general acting under [MCL 722.1314], a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and to assist the prosecutor or attorney general with responsibilities under [MCL 722.1314].” MCL 722.1315.

2.Hague Convention on the Civil Aspects of International Abduction (Hague Convention)

This sub-subsection provides a general overview of the Hague Convention on the Civil Aspects of International Abduction (Hague Convention). For additional information on the Hague Convention, see the Hague Convention on Private International Law, Child Abduction Section, website, and the Hague Convention on International Child Abduction, Text and Legal Analysis, 51 Fed Reg 10494 (1986).

“[C]hild abduction and retention cases are actionable under the [Hague] Convention if they are international in nature (as opposed to interstate), and provided the [Hague] Convention has entered into force for both countries involved.”²⁵ Hague Convention on International Child Abduction, Text and Legal Analysis, 51 Fed Reg 10494, supra at p 7.

The United States is among several countries that agreed to implement a multilateral treaty, the Hague Convention on the Civil Aspects of International Abduction (Hague Convention), to “establish[] legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights.”²⁶ 42 USC 11601(a)(4). The International Child Abduction Remedies (ICAR), 42 USC 11601 et seq., was enacted to implement the Hague Convention.

Article 3 of the Hague Convention explains what constitutes wrongful removal or retention:

“The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident^[27] immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Convention on the Civil Aspects of International Child Abduction (full text).

For purposes of the ICAR, “the terms ‘wrongful removal or retention’ and ‘wrongfully removed or retained’, as used in the [Hague] Convention, include a removal or retention of a child before the entry of a custody order regarding that child[.]” 42 USC 11603(f)(2).

Under Article 4 of the Hague Convention, the Hague Convention applies “to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights,[ and] [t]he [Hague] Convention [] cease[s] to apply when the child attains the age of 16 years.”Convention on the Civil Aspects of International Child Abduction (full text), supra.

See Abbott v Abbott, 560 US 1, 14-15 (2010), where the United States Supreme Court determined that a parent has a right of custody for purposes of the Hague Convention where he or she has a ne exeat²⁸ right of authority to consent before the other parent takes a child to another country.

Note: The Abbott Court found that the breach of a ne exeat right gives rise to a return remedy “because these rights depend on the child’s location being the country of habitual residence.” Abbott, 560 US at 13-14. However, a return is not automatic. Id. See Section 8.6(B)(2)(b) for exceptions.

a.Petition for Relief

The Hague Convention provides for administrative and judicial methods of relief:

•Articles 8 and 21 of the Hague Convention permit “[a]ny person, institution[,] or other body claiming that a child has been removed or retained in breach of custody rights [to] apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child” or “for organi[z]ing or securing the effective exercise of rights of access[.]” Convention on the Civil Aspects of International Child Abduction (full text). Information on the United State’s Central Authority is accessible at http://www.hcch.net/en/states/authorities/details3/?aid=133.

•42 USC 11603(b) permits “[a]ny person seeking to initiate judicial proceedings under the [Hague] Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”

Note: 42 USC 11603(a) provides the federal district courts and state courts with “concurrent original jurisdiction of actions arising under the [Hague] Convention.”

42 USC 11603(g) requires the federal and state courts to give full faith and credit to the “judgment of any other such court ordering or denying the return of a child, pursuant to the [Hague] Convention, in an action brought under [the ICAR].”

“The remedies established by the [Hague] Convention and [the ICAR] shall be in addition to remedies available under other laws or international agreements.” 42 USC 11603(h).

b.Burden of Proof

42 USC 11603(e)(1) addresses a petitioner’s burden of proof:

“A petitioner in an action brought under [42 USC 11603(b)] shall establish by a preponderance of the evidence--

(A) in the case of an action for the return of a child, that the child has been wrongfully removed or retained within the meaning of the [Hague] Convention;^[29] and

(B) in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has such rights.” 42 USC 11603(e)(1).

42 USC 11603(e)(2) addresses the respondent’s burden of proof when opposing an action for the return of a child. The respondent must prove that one of several exceptions to the mandatory return of a child apply. See id. The different exceptions and burdens of proof are discussed below. If the respondent fails to establish the existence of an exception, the child must be returned to his or her place of habitual residence. Convention on the Civil Aspects of International Child Abduction (full text). See also, 42 USC 11601(a)(4), which requires “[c]hildren who are wrongfully removed or retained within the meaning of the [Hague] Convention [] to be promptly returned unless one of the narrow exceptions set forth in the [Hague] Convention applies.”

Note: The return of a child to a foreign country pursuant to a return order under the Hague Convention does not render an appeal of that order moot where “there is a live dispute between the parties over where the[] child will be raised, and there is a possibility of effectual relief for the prevailing parent.” Chafin v Chafin, 568 US 165, 180 (2013).

The Hague Convention and the ICAR provide the following exceptions to the mandatory return of a child:

•“[T]here is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention on the Civil Aspects of International Child Abduction (full text), supra. The respondent must prove this basis for refusing to return the child by clear and convincing evidence. 42 USC 11603(e)(2)(A).

Note: “The person opposing the child’s return [under Article 13(b) of the Hague Convention] must show that the risk to the child is grave, not merely serious. . . . An example of an ‘intolerable situation’ is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard [him or her] against further victimization, and the abusive parent then petitions for the child’s return under the [Hague] Convention, the court may deny the petition. Such action would protect the child from being returned to an ‘intolerable situation’ and subjected to a grave risk of psychological harm.” Hague Convention on International Child Abduction, Text and Legal Analysis, 51 Fed Reg 10494, supra at p 21.

•“The return of the child under the provisions of Article 12 [of the Hague Convention] may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” Hague Convention, Article 20. See Convention on the Civil Aspects of International Child Abduction (full text), supra. The respondent must prove this basis for refusing to return the child by clear and convincing evidence. 42 USC 11603(e)(2)(A).

•If more than one year has elapsed from the date of the alleged wrongful removal or retention, the court must order the return of the child, unless the respondent proves by a preponderance of the evidence that the child has now settled in his or her new environment. Hague Convention, Article 12; 42 USC 11603(e)(2)(B). See Convention on the Civil Aspects of International Child Abduction (full text), supra. “[T]he 1-year period in Article 12 of the Hague Convention is not subject to equitable tolling.” Lozano v Montoya Alvarez, 572 US 1, 18 (2014). Thus, even where an abducting parent conceals a child’s location from the petitioning parent, and the petitioner cannot file a petition until after the one-year period, return of the child is not automatic. Id. at 15-16 (although the abducting parent concealed the child’s location from the petitioning parent for more than 16 months, return of the child was not required where the lower court determined that the child was settled in her new home with the respondent).

•The petitioner was not exercising his or her custody rights “at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention[.]” Hague Convention, Article 13(a). See Convention on the Civil Aspects of International Child Abduction (full text), supra. The respondent must prove this basis for refusing to return the child by a preponderance of the evidence. 42 USC 11603(e)(2)(B).

•The court “finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [his or her] views.” Hague Convention, Article 13. See Convention on the Civil Aspects of International Child Abduction (full text), supra. The respondent must prove this ground for refusing to return the child by a preponderance of the evidence. 42 USC 11603(e)(2)(B).

Article 13 of the Hague Convention also requires the court to “take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” See Convention on the Civil Aspects of International Child Abduction (full text), supra.

But see, Article 17 of the Hague Convention, which provides that a court cannot refuse to return a child solely on the basis of an order awarding custody to the parent who took the child entered in the state to which the child was taken. See Convention on the Civil Aspects of International Child Abduction (full text), supra.

c.Judicial Determination

The court must decide a case filed under the ICAR in accordance with the Hague Convention. 42 USC 11603(d). Once proceedings have been initiated, Article 7(b) of the Hague Convention provides for appropriate “provisional measures[,]” which must be taken by the Central Authorities “to[, among other things,] prevent further harm to the child or prejudice to interested parties[.]” See Convention on the Civil Aspects of International Child Abduction (full text), supra. 

42 USC 11604(a) empowers courts exercising jurisdiction under the Hague Convention to “take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition.” A court’s authority to take such measures is limited by a requirement that the “applicable requirements of State law” be satisfied before a child is removed from the person having physical custody. 42 USC 11604(b).

“[A]fter receiving notice of a wrongful retention, [the court] ‘shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under [the Hague] Convention or unless an application under [the Hague] Convention is not lodged within a reasonable time following receipt of notice.’” Tyszka v Tyszka, 200 Mich App 231, 235 (1993) (the trial court erred when it determined custody of the children in the divorce judgment following a “determin[ation] that the children had been wrongfully retained in this country by the[] [plaintiff-]father and that they should be returned to the[] [defendant-]mother in France[;]” “the issue of custody should be resolved by a French tribunal with subject-matter jurisdiction”).

3.Required Provision in Parenting Time Orders

The Child Custody Act, MCL 722.27a(10), requires parenting time orders to contain a provision that prohibits a parent from “exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Abduction[,]” unless both parents provide the court with written consent permitting otherwise.

C.Committee Tips for Preventing Parental Abduction or Flight

The court can discourage parental abduction or flight by identifying cases where children are at risk and by taking preventative measures. The editorial advisory committee offers the following suggestions for preventing parental abduction or flight:

•Provide appropriate provisions for the safe exercise of parental rights.

A parent will not be as likely to take control over their child(ren) in violation of a custody or parenting time order that contains appropriate provisions for the safe exercise of parental rights.

•Screen contested child custody cases to assess the risk of parental abduction or flight.

In assessing the risk for parental abduction or flight, the court should consider the following factors:

•whether the presence of domestic violence exists.

•whether a parent has previously abducted or threatened to abduct a child or has a history of hiding the child.

•whether the parties’ marriage has a history of instability.

•whether a parent believes that the other parent has abused, neglected, or molested the child.

•whether a parent has citizenship or ties to a nation that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.

•Provide specific provisions in the custody or parenting time order.

The court should include specific provisions in its custody or parenting time order that adequately address the violence between the parties and state possible penalties for violating the court’s order. The court should also take preventative measures when issuing its custody or parenting time order that avoids orders for joint custody where there is hostility between the parties, provides for supervised parenting time with supervision by a neutral third party, and includes provisions in its custody or parenting time order that facilitates enforcement by courts in other jurisdictions.