4.4Concurrent Jurisdiction

The Family Division of the Circuit Court has exclusive jurisdiction over neglect and abuse cases. MCL 600.1021(1)(e).

Note: Whenever practicable, two or more matters within the Family Division’s jurisdiction pending in the same judicial circuit and involving members of the same family must be assigned to the judge who was assigned the first matter. MCL 600.1023.

If a petition is filed in the Family Division alleging that the court has jurisdiction over the child under MCL 712A.2(b) and the custody of the child is subject to the prior or continuing order of another court of record of this state, the manner of the required notice and the authority of the Family Division to proceed are governed by MCR 3.205. MCL 712A.2(b); MCR 3.205.¹ See generally, In re Brown (Abijah), 171 Mich App 674, 676–677 (1988) (where custody of respondent’s children was previously awarded to respondent in a divorce proceeding, the Probate Court did not err in taking jurisdiction over respondent’s children, after giving the required notice to the Circuit Court, on grounds that their home was unfit).

Furthermore, a judge presiding over a juvenile matter may consider related actions under the Child Custody Act (CCA) ancillary to making determinations under the juvenile code. In re AP, 283 Mich App 574, 578 (2009). In doing so, the judge must follow relevant procedural and substantive requirements of the CCA. Id. In In re AP, the Court of Appeals noted:

“There is no authority to preclude a circuit judge from determining custody pursuant to the CCA ancillary to making determinations under the juvenile code. . . . To the contrary, the RJA [(Revised Judicature Act)], as amended by 1996 PA 388, specifically permits a judge presiding over a juvenile matter to consider related actions under the CCA.

* * *

If a court presiding over a juvenile proceeding finds itself in a position in which the matter before it has been consolidated with a related custody matter, it must make clear that it is exercising jurisdiction pursuant to [MCL 600.1021(3)].” In re AP, 283 Mich App at 598-599, 607.

A.Waiver of Jurisdiction in Divorce Proceedings

The Family Division may obtain jurisdiction of a child protective proceeding where the Circuit Court, in a divorce proceeding, has previously waived jurisdiction over the child:

(1) in a temporary order for custody related to a complaint for divorce or upon a motion related to a complaint for divorce by the prosecuting attorney;

(2) in a divorce judgment dissolving a marriage between the child’s parents; or

(3) by an amended judgment relative to the custody of the child in a divorce. MCL 712A.2(c).

In order for the prior court to effectively waive jurisdiction, it must hold a hearing and make a preliminary finding that the child is abused or neglected. In re Robey, 136 Mich App 566, 572-574 (1984).

Note: Waiver does not automatically confer jurisdiction in the protective proceeding but acts only to provide the court with information upon which the court may authorize the filing of a petition. In re Robey, 136 Mich App at 578–579. See MCL 712A.11(1) (after a person gives information to the court concerning a child, the court may conduct a preliminary inquiry to determine an appropriate course of action).

However, the subsequent court is not required to obtain a waiver of jurisdiction by the prior court in order to exercise its own jurisdiction where the subsequent court is statutorily granted jurisdiction. Krajewski v Krajewski, 420 Mich 729, 734 (1984); MCR 3.205(A). In Krajewski, even though the Circuit Court retained continuing jurisdiction over the child upon entry of a custody order in connection with the child’s parents’ divorce decree, the Probate Court would properly exercise its jurisdiction without obtaining a waiver from the Circuit Court because a petition filed under MCL 712A.2(b) alleged neglect and sought termination of parental rights. Krajewski, supra at 734.

Note: MCL 712A.2(b) provides a court with jurisdiction over a child when the parents fail or refuse to provide proper support. See Section 4.3.

B.Notice to the Other Court

A party that initiates a subsequent proceeding involving the same minor must send notice of the proceeding to the court clerk or register of the prior court, and the appropriate official.² MCR 3.205(B)(2)(a)-(b).³ 

Note: MCR 3.205(B)(1) defines an appropriate official as “the friend of the court, juvenile officer, or prosecuting attorney, depending on the nature of the prior or subsequent court action and the court involved.”

The notice must be sent at least 21 days before the subsequent proceeding’s hearing date. MCR 3.205(B)(3). If the prior court’s order or judgment for continuing jurisdiction was not known 21 days before the subsequent proceeding’s hearing date, then the initiating party must send the notice as soon as it becomes known. Id. However, the notice requirement is not jurisdictional and therefore, does not prevent the subsequent court from entering interim orders that are in the child’s best interests before the 21-day period expires. MCR 3.205(B)(4). See also Krajewski, 420 Mich at 734 (subsequent court may enter temporary or permanent orders).

Failure to give notice of the subsequent court proceeding does not deprive a subsequent court of its jurisdiction. In re DaBaja, 191 Mich App 281, 290 (1991).

C.Prior and Subsequent Orders

A prior court’s order remains in effect until a subsequent court order supersedes, changes, or terminates the prior court’s order. MCR 3.205(C)(1).

However, a subsequent court must give due consideration to a prior court’s order, and may not enter any orders that are contrary to or inconsistent with a prior court’s order unless permitted to do so by law. MCR 3.205(C)(2). Where a juvenile court assumes jurisdiction over a child and the child becomes a court ward under the juvenile code, the juvenile court’s orders supersede all previous custody orders, even if inconsistent or contradictory, while the juvenile matter is pending. In re AP, 283 Mich App 574, 594 (2009). Specifically,

“[U]pon entry of a child custody order under the CCA, a child’s parents, or other custodians, must abide by the terms of the custody order. However, once a juvenile court assumes jurisdiction over a child and the child becomes a ward of the court under the juvenile code, the juvenile court’s orders supersede all previous orders, including custody orders entered by another court, even if inconsistent or contradictory. In other words, the previous custody orders affecting the minor become dormant, in a metaphoric sense, during the pendency of the juvenile proceedings, but when the juvenile court dismisses its jurisdiction over the child, all those previous custody orders continue to remain in full force and effect. . . . [T]he juvenile court’s orders function to supersede, rather than modify or terminate, the custody orders while the juvenile matter is pending because the juvenile orders are entered pursuant to a distinct statutory scheme that takes precedence over the CCA. We note that during the duration of the juvenile proceedings, while the parties subject to the custody order can move to modify the custody order, any modification would remain superseded by the juvenile court’s orders.” In re AP, 283 Mich App at 593-594 (internal citations omitted).

When a subsequent court enters an order, the subsequent court must file notice of the order with the prior court. MCL 712A.3a. A copy of the notice must also be served, personally or by registered mail, to the minor child’s parents, guardian, or persons in loco parentis, and the prosecuting attorney. Id.

Note: The notices must not disclose the allegations or findings of facts set forth in the petitions or orders, or reveal any individual’s or organization’s name. MCL 712A.3a. However, at the prosecuting attorney’s request, or by court order, the confidential information may be disclosed directly to the prosecuting attorney. Id. 

D.Duties of Prior and Subsequent Courts

Once a prior court receives notice of subsequent proceedings, the appropriate official must provide the subsequent court with copies of all relevant records, reports, and orders that remain in effect. MCR 3.205(D)(1)(a). The appropriate official from the prior court may also appear in person at subsequent proceedings when the welfare of the minor and the interests of justice require. MCR 3.205(D)(1)(b).

At the prior court’s request, the subsequent court must notify the prior court of all subsequent proceedings, and the subsequent court must send copies to the prior court of all subsequent orders entered. MCR 3.205(D)(2). Upon receipt of an order from the subsequent court, the appropriate official of the prior court must take necessary steps to implement the order in the prior court. MCR 3.205(D)(4).