Biological Father Never Married To Child’s Mother Gets Custody and Visitation

After DNA testing showed the plaintiff was the biological father of the unmarried parties’ minor child, the trial court properly awarded the plaintiff joint legal custody of and parenting time with the child, the Michigan Court of Appeals ruled in Demski v Petlick.

In Demski (Docket No. 322193), the defendant mother gave birth to the child, MP, shortly after she married another man, Jeffrey Petlick, who was the child’s presumed father under Michigan law. After paternity testing determined that MP was the plaintiff’s biological daughter, the plaintiff filed a custody and parenting time action in the Berrien County Circuit Court.

The trial court, examining the best interest factors in the Child Custody Act (MCL 722.23), ruled that MP had an established custodial environment with the defendant. The trial court also found it was in MP’s best interests for the defendant and the plaintiff to share joint legal custody, with the defendant having sole physical custody and the plaintiff having parenting time.

The Court of Appeals affirmed in a 2-1 published decision. Judge Mark T. Boonstra wrote the majority opinion, joined by Judge Pat M. Donofrio. Judge Elizabeth Gleicher dissented.

“The [best interest] factors were relatively evenly split between the parents, and the trial court’s award of joint legal custody was not ‘grossly violative of fact and logic’ as required to show an abuse of discretion,” the Court of Appeals majority said.

Moreover, the trial court’s findings regarding parenting time “were not against the great weight of the evidence, and the trial court’s grant of supervised parenting time to plaintiff was not a palpable abuse of discretion,” the Court of Appeals wrote.

Custody And Parenting Time

The defendant argued on appeal that the trial court erred by finding it had the authority to enter a custody and parenting time order. The defendant further asserted that, if the trial court indeed had such authority, it erred by failing to hold an evidentiary hearing on custody and parenting time and the trial court’s orders should be reversed because they were not in the best interests of MP.

“We disagree,” the Court of Appeals said.

In its analysis, the Court of Appeals pointed out that two best interest factors favored the defendant, one factor strongly favored the plaintiff and the majority of the remaining best interest factors weighed equally.

“The trial court held as follows concerning child custody: ‘While the court determined the parties predominately equal in review of the factors applicable and two to 1 in factors favoring the Plaintiff father, primary is the best interest of the minor who is too young to appreciate the uniqueness of her family dynamic or to process the same,’” the Court of Appeals said. “The court is fully persuaded that review of the facts in this case are clear and convincing that it is in the best interest of [the minor child] that Plaintiff and Defendant Mother shall share joint legal [sic] and sole physical custody is awarded to Defendant Mother with Reasonable Rights of Parenting Time to be achieved for Plaintiff Father.”

The Court of Appeals said that, based on its review of the best interest factors, “and despite our different assessment of two of those factors,” the trial court did not abuse its discretion by awarding sole physical custody of MP to the defendant and joint legal custody to both parties.  “The factors were relatively evenly split between the parents, and the trial court’s award of joint legal custody was not ‘grossly violative of fact and logic’ as required to show an abuse of discretion.”

The defendant further argued that the trial court should not have granted the plaintiff parenting time pursuant to MCL 722.27a(6)(a) and MCL 722.27a(6)(i) because: 1) MP did not know the plaintiff and was timid around strangers; 2) MP had a history of serious illness; 3) it was dangerous to put MP in an environment where the defendant was not present; and 4) the plaintiff’s home environment was not suitable because of his history of marijuana use and his failure to demonstrate that he was capable of caring for MP.

“The sum of defendants’ arguments regarding parenting time is that MP would be placed in danger in plaintiff’s home,” the Court of Appeals observed. “However, … the trial court did not err in finding that plaintiff had the capacity and disposition to provide MP with love, affection and guidance, as well as provide her with food, clothing, medical care, other remedial care, and other material needs.”

In addition, “there was no evidence that plaintiff’s past marijuana use would affect his performance as a parent going forward,” the Court of Appeals said. “The trial court explicitly declined to find that MP would be endangered physically, mentally, or emotionally by granting parenting time to plaintiff.”

Accordingly, the trial court’s findings “were not against the great weight of the evidence,” the Court of Appeals concluded.

Paternity Challenge Nixed

The Court of Appeals also rejected the defendant’s equal protection challenge to the trial court’s paternity decision under the Revocation of Paternity Act (RPA).

“Although defendants argue that the RPA severs a fundamental liberty interest in the presumed father, the actual effect of the RPA, combined with the paternity act, is to provide a mechanism for determining which man is the father of a minor child, and thus in possession of a fundamental liberty interest in his relationship with the child,” the Court of Appeals stated. “We find no merit to defendants’ constitutional challenge to MCL 722.1441.”

In particular, the defendant asserted the trial court erred in failing to find a determination that MP was born out of wedlock would not be in the child’s best interests under MCL 722.1443(4). “The trial court addressed the best interests of MP … to determine whether it should determine that MP was born out of wedlock, which was proper. … [T]he trial court found under factor (d) that there was a strong bond of love between [the presumed father] and MP and found under factor (g) that there was not a significant risk of disruption of [the presumed father’s] relationship with MP if plaintiff was granted parenting time.”

Regarding factor (f) – the harm that may result to the child – the trial court stated: “The court determined the most reliable testimony relative to determining harm was that of the expert witness, counselor Robin Zollar. Ms. Zollar, a determined expert in child development assessment and therapy, opined following her interview and assessment of Defendant(s) and observations of the minor that [MP] appeared to be okay in non-threatening situation [sic], suggesting that Plaintiff … be introduced to [MP] merely as an individual and not as a parent. Ms. Zollars [sic] concern for harm to the minor centered around the mminors [sic] possible confusion if faced with the potential of having two dads. Defendant[’s] … declarations of potential harm to the minor appear unreasonable and were weighed accordingly.”

According to the Court of Appeals, the trial court properly relied on Zollar’s testimony that MP could benefit from the plaintiff being involved in her life when it addressed factor (f). “The trial court’s findings do not leave us with a definite and firm conviction that a mistake was made. … Therefore, we hold that the trial court did not clearly err in declining to conclude that an order determining that MP was born out of wedlock would not be in her best interests.”

Dissenting Opinion

Judge Gleicher, in her dissenting opinion, said the plaintiff did not present clear and convincing evidence that declaring the child born out of wedlock would serve the child’s best interests.

In addition, Gleicher said the trial court’s ex parte consideration of expert testimony and its failure to hold an evidentiary hearing to consider the child’s best interests contravened the Child Custody Act, requiring reversal of its custody and parenting time orders.

Regarding the RPA,  Gleicher explained that while the Michigan Legislature did not specify the standard of proof applicable to best interest determinations under the RPA, it did not enact the statute “in a vacuum.”

“The principles that only clear and convincing evidence of a child’s best interests justify disrupting an established environment or depriving a legal father of his paternal rights are firmly

fixed in family law,” Gleicher said. “I cannot conclude that the Legislature intended to abandon the heightened standard of proof in a directly analogous custodial context simply because it failed to reiterate it in the RPA.”

The Demski decision was appealed to the Michigan Supreme Court, which denied leave.