In Re Danke
Albert Danke appeals as of right from an October 19, Í987, order of the Macomb Circuit Court dismissing his petition for custody of his grandson, Michael Danke, Jr., filed under the provisions of the Uniform Child Custody Jurisdiction Act (uccja),
*455 The record reveals that the child in this case was born on July 28, 1981, when his father was nineteen years old and his mother was eighteen years old. Apparently, he resided with his parents until March 12, 1986, when, with his parents’ consent, he began living in Michigan with petitioner, his paternal grandfather. The child’s parents both signed notarized statements giving petitioner permission to obtain medical treatment for their child while in petitioner’s care. It was known that the child’s feet required medical attention. That attention was procured and paid for by petitioner, who also enrolled the child in a nursery school program and, later, in a local public school.
In May, 1987, Michael Danke, Sr., filed a petition for divorce in the Superior Court of California in Orange County. That petition stated that the parties had separated in February, 1985, and that the parties’ child, Michael Danke, Jr., resided with his father in California. On August 4, 1987, the California court granted the petition for divorce and ordered that custody of the child be placed in his father for one year beginning in September, 1987, and in his mother the following year. After the petition for divorce was granted, the child’s mother changed her residence from California to Oregon. When enforcement of the California custody order was sought, petitioner commenced the instant proceedings in the Macomb Circuit Court, requesting that that court take jurisdiction of the case under the uccja and order that custody of Michael Danke, Jr., be placed in petitioner. 1 On August 31, 1987, the court entered an ex parte order granting petitioner temporary custody of the child until September 28, 1987. The child’s parents *456 were notified of the hearing scheduled on the petition; and, on September 28, 1987, that hearing was conducted, with arguments being presented by counsel for Albert Danke and by counsel for Michael Danke, Sr. At the hearing the court ruled that the only question before it concerned whether a Michigan court could properly exercise jurisdiction over the custody matter in view of the involvement of the California court. The court concluded that it did "not have jurisdiction due to the fact that California does have jurisdiction because of the parties being there.”
Petitioner now appeals, arguing that the circuit court erred by concluding that it lacked jurisdiction to modify the existing custody order of the California court. We agree.
In this case, a Michigan court could not properly modify the California custody order unless it had the jurisdiction to do so under the uccja. The provision in the uccja concerning the modification of foreign custody decrees or judgments states:
If a court of another state has made a custody decree or judgment, a court of this state shall not modify that decree or judgment unless it appears to the court of this state that the court which rendered the decree or judgment does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with sections 651 to 673 or has declined to assume jurisdiction to modify the decree or judgment and the court of this state has jurisdiction. [MCL 600.664(1) ; MSA 27A.664(1).]
There is nothing in the record presented to us to suggest that the California court which issued the August 4, 1987, custody order has declined to assume jurisdiction to modify its decree. Accordingly, if a court of this state is to modify the
*457
foreign custody order, it must be shown that the California court "does not now have jurisdiction under the jurisdictional prerequisites substantially in accordance with sections 651 to 673 . . .
and
[that] the court of this state has jurisdiction.” (Emphasis added.) The statutory clause, "does not now have jurisdiction,” refers to the time when the petition to modify the foreign order was filed in Michigan.
Bivins v Bivins,
Whether a court has jurisdiction to decide or modify a child custody matter under the uccja depends upon whether the circumstances of the case in question fulfill one of the jurisdiction-conferring provisions in that act. Section 653(1) of the act states that such jurisdiction is conferred if any one of the following criteria is satisfied:
(a) This state is the home state of the child at the time of commencement of the proceeding or had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.
(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least 1 contestant, have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or *458 future care, protection, training, and personal relationships.
(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.
(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a), (b), or (c) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child and it is in the best interest of the child that this court assume jurisdiction.
On the date petitioner initiated the present litigation, none of these criteria could be satisfied such as would permit a California, and not a Michigan, court to decide the matter of modifying the child custody order previously issued by a California court.
First, under § 653(1)(a), Michigan, not California, was the home state of Michael Danke, Jr., as of August 25, 1987. He had resided continuously with petitioner in Michigan since March 12, 1986 — a period of more than seventeen months prior to the commencement of the present proceedings. This lengthy period in which the child resided in Michigan shows that his connection with this state, and not with California, was significant and considerable. See
Brown v Brown,
Second, under §653(1)(b), it appears that the child and petitioner, who is a "contestant” in this matter because he "claims a right to custody . . . with respect to [the] child,”
Under § 653(1)(c), California would not have jurisdiction because the child is physically present in Michigan and there has been no showing of abandonment, abuse or neglect. Furthermore, under §653(1)(d) California would not have jurisdiction because, as concluded above, it appears that under subsections (1)(a) and (1)(b) Michigan may properly exercise jurisdiction in this child custody matter.
Our conclusion that the Macomb Circuit Court erred by finding that it was without jurisdiction under the uccja to modify the California court’s child custody order requires us to remand this case for a full evidentiary hearing. On remand, the circuit court shall determine, first, whether an established custodial environment exists,
Reversed and remanded for proceedings consistent with this opinion.
Notes
The fifty states and the District of Columbia have adopted the Uniform Child Custody Jursidiction Act. In California law, the act is codified in