## Facts

- Leah Rose Foster and David Kenneth Wolkowitz, unmarried biological parents, had a child (“M.”) born in Michigan in October 2006.
- In January 2007, the parents executed and filed a Michigan acknowledgment of parentage (AOP), establishing Wolkowitz’s paternity and triggering a statutory presumption that the mother had “initial custody,” subject to court modification.
- In April 2007, the family moved to Illinois and lived there together; the parents obtained Illinois driver’s licenses and the child received Illinois state health insurance.
- Foster periodically returned with the child to Michigan for extended visits with her family.
- In May 2008, the relationship ended; Foster left Illinois with the child and returned to Michigan.
- Five days after returning, Foster filed a Michigan action seeking custody, parenting time, and support; about one month later, Wolkowitz filed a custody action in Illinois.
- Michigan and Illinois courts conferred under the UCCJEA; Michigan held an evidentiary hearing and concluded it had jurisdiction because the AOP constituted an “initial custody determination,” then entered temporary custody, parenting-time, and support orders.

## Issues

1. Whether the APA’s presumptive custody consequence of executing a Michigan AOP constitutes an “initial child-custody determination” under the UCCJEA.
2. If not, which state was the child’s “home state” under the UCCJEA at the commencement of the custody proceedings, and which state therefore had priority to make the initial custody determination.

## Decision

- The Michigan Supreme Court reversed the lower courts’ conclusion that Michigan had jurisdiction to make the initial custody determination.
- The court held that an AOP is not an “initial child-custody determination” under the UCCJEA because it is not a custody decision made by a court.
- The court held that Illinois was the child’s home state under the UCCJEA at the time the custody proceedings commenced.
- The case was remanded with instructions that Michigan defer to Illinois’s home-state authority unless Illinois declines jurisdiction in favor of Michigan.
- Pending resolution of jurisdiction, the AOP-based presumptive custody arrangement and Michigan’s temporary orders regarding parenting time and child support remained in effect.

## Legal Principles

- Under the UCCJEA, an “initial child-custody determination” must be the first custody determination made by a court; nonjudicial documents or statutory presumptions arising from private acts do not qualify.
- A Michigan AOP’s statutory presumption that the mother has “initial custody” does not create UCCJEA jurisdiction and does not confer continuing, exclusive custody jurisdiction on Michigan.
- The AOP’s presumptive custody provision remains a valid, enforceable arrangement between the parents unless and until a court with proper jurisdiction enters a custody order.
- The child’s UCCJEA “home state” is the state where the child lived with a parent for at least six consecutive months immediately before the custody proceeding commenced (subject to statutory rules on temporary absences).
- When another state is the home state, a Michigan court must defer unless the home state declines jurisdiction under UCCJEA forum provisions.

## Conclusion

The court ruled that a Michigan acknowledgment of parentage, although it establishes paternity and triggers a statutory custody presumption, is not a court-made “initial custody determination” for UCCJEA purposes; because Illinois was the child’s home state, Illinois had priority to decide initial custody jurisdiction, with Michigan required to defer unless Illinois declined.


Foster v. Wolkowitz, 486 Mich. 356, 785 N.W.2d 59 (Mich. 2010)