Divorce Judgment’s Custody, Parenting-Time Provisions Were Wrongly Vacated

The trial court’s decision to vacate the custody and parenting-time provisions in the parties’ divorce judgment must be reversed, the Michigan Court of Appeals has ruled, because the trial court erroneously held that the defendant first had to establish paternity.

The case, Dennis v Tyler (Docket No. 358222), was on appeal for the third time from the Allegan County Circuit Court. The matter involved the Child Custody Act (MCL 722.21, et seq.), the Paternity Act (MCL 722.711, et seq.) and the statutory best-interest factors in MCL 722.23.

In addition to finding the defendant did not have to establish paternity before it could enter a custody or parenting-time order, the Court of Appeals held the trial court erred by:

• finding that an order of filiation entered by another trial court required the divorce judgment provisions be vacated.

• ruling that the opinion and order in a previous appeal (Dennis II) required it to vacate the divorce judgment provisions.

• not considering the statutory best-interest factors.

Judges Mark J. Cavanagh, Kathleen Jansen and Michael J. Riordan were on the appellate panel that issued the 10-page opinion.

Background

After the Court of Appeals decided Dennis v Tyler in 2017 (Docket No. 331503) (Dennis I) and Dennis v Tyler in 2019 (Docket No. 345492) (Dennis II), the Allegan County trial court received a notice of prior court proceedings in the Kalamazoo Circuit Court involving the minor child, BT. The Kalamazoo trial court had entered an order of filiation regarding BT’s biological father (not the defendant in this case).

The trial court then, on its own motion, entered an order vacating the parenting-time and custody provisions of the parties’ divorce judgment. In making its decision, the trial court stated, in part: “Based upon the Court of Appeal’s 2019 order, the initiation of the Kalamazoo 2020 case, and the requirement that paternity be established prior to any entry of Custody, Parenting Time, or Child Support, the Court hereby VACATES any provision relating to Custody, Parenting Time, or Child Support ….”

The trial court denied the defendant’s motion for reconsideration. The defendant appealed.

Paternity Not A Pre-Requisite

On appeal, the defendant first argued the trial court wrongly vacated the divorce judgment provisions because he could not establish paternity, which the trial court held was required before it could enter a custody or parenting-time order.

“We agree,” the Court of Appeals said, emphasizing that:

• the Child Custody Act “is the exclusive means of pursuing child custody rights.”

• the Paternity Act “establishes a putative father’s paternity and supplies a basis for court-ordered child support, custody, or parenting time.”

• the Acknowledgment of Parentage Act, MCL 722.1001 et seq., provides a means for a putative father to establish paternity but without further adjudication under the Paternity Act.

Here, the trial court did not explain why the requirement that paternity be established before entering a custody or parenting-time order required it to vacate the provisions of the divorce judgment, the Court of Appeals noted. Meanwhile, in the order denying the defendant’s motion for reconsideration, the trial court cited Hoshowski v Genaw, 230 Mich App 498 (1998), for the proposition that a putative father “may not seek custody or parenting time under the Child Custody Act unless there is first an acknowledgement of paternity or an order of filiation under the Paternity Act,” the appeals court observed.

The trial court’s reasoning based on Hoshowski was incorrect, the Court of Appeals said. “The Court in Hoshowski only ruled that an affidavit of parentage was sufficient to establish paternity ‘for all purposes,’ which meant that the plaintiff could avoid moving for a paternity determination under the Paternity Act before moving for custody and parenting time under the Child Custody Act. … Hoshowski does not affirmatively require that every putative father establish paternity before being included in a custody and parenting-time order.”

Looking to Aichele v Hodge, 259 Mich App 146 (2003), the Court of Appeals pointed out that “putative fathers must have standing in order to seek custody of minor children under the Child Custody Act and standing requires a showing of paternity.” Here, the defendant was not the party who initially raised the issue of custody and the plaintiff was the party who filed a motion for custody and parenting-time determinations. Therefore, the defendant “does not need to seek standing, through paternity, because he is the nonmoving party.”

Furthermore - and “contrary to the trial court’s assertion” - Sirovey v Campbell, 223 Mich App 59 (1997), stands for the proposition that “a party who is not a biological parent of a minor child may, nevertheless, be awarded custody of the minor child through divorce proceedings,” the Court of Appeals said.

In addition, the language of the Child Custody Act is unambiguous and “does not require a party to be the biological parent, or have otherwise established paternity, in order to benefit from an order of custody or parenting time,” the Court of Appeals wrote. “Simply put, the Child Custody Act allows custody to be awarded to one or more parties involved in a custody dispute, or to others, so long as it is in the best interests of the child. Defendant is a party to the judgment of divorce, which awarded him custody and parenting time. Therefore, defendant does not need to establish paternity to benefit from the custody and parenting-time provisions of the judgment of divorce. He also did not need to establish standing, through paternity, as the nonmoving party. Therefore, the trial court erred by ruling that the custody and parenting-time provisions of the judgment of divorce were required to be vacated because defendant had not demonstrated paternity.”

No Filiation Order Impact

The defendant also argued the trial court erroneously found that the Kalamazoo Circuit Court’s order of filiation required the provisions of the divorce judgment be vacated.

The Court of Appeals agreed with the defendant, noting that MCR 2.612(C)(1)(d) allows for relief from a final judgment when the judgment is void. “It appears the trial court assumed that the custody and parenting-time provisions of the judgment of divorce were void because the Kalamazoo Circuit Court had entered an order of filiation regarding the biological father of the child,” the appeals court said. “Specifically, in its order denying defendant’s motion for reconsideration, the trial court stated that ‘[p]aternity was never established in the divorce matter but has been established in the recent Kalamazoo paternity action. Therefore, any order regarding custody and parenting time in the instant case is invalid ….’ However, the Kalamazoo Circuit Court’s order of filiation specifically did not make any judicial determination regarding custody or parenting time over BT.”

The Court of Appeals again emphasized that the defendant did not need to establish paternity before the custody and parenting-time provisions were entered because he was not the moving party. “This means that the order of filiation, establishing that the biological father of BT had paternity, was also not in conflict with the custody and parenting-time provisions regarding defendant and BT because defendant’s paternity was not a dispositive issue for those provisions.”

Accordingly, “the trial court abused its discretion when it ruled that the custody and parenting-time provisions of the judgment of divorce were invalid because it is outside the range of principled outcomes that the order of filiation created a conflict with the judgment of divorce that rendered some of its provisions voidable,” the Court of Appeals said.

Prior Decisions Not Controlling

The Court of Appeals further held the trial court wrongly ruled that its order in Dennis II required it to vacate the custody and parenting-time provisions of the parties’ divorce judgment.

The defendant “is correct that the Dennis II opinion does not require the trial court to vacate the custody and parenting-time provisions of the judgment of divorce because the Dennis II opinion does not instruct the trial court with any remand proceedings,” the Court of Appeals said. Rather, the decision in Dennis II “states that plaintiff may only modify the custody and parenting-time provisions of the judgment of divorce by seeking to modify the custody agreement.”

Moreover, “this Court in Dennis II stated that the Dennis I opinion did not require the trial court to terminate defendant’s paternity,” the Court of Appeals pointed out.

Accordingly, the trial court erred “to the extent that it relied on this Court’s opinion in Dennis II as a directive to vacate the custody and parenting-time provisions of the judgment of divorce because this Court ruled that it did not require any modification to the judgment of divorce and that it did not terminate defendant’s paternity,” the Court of Appeals held.

Best-Interest Factors Ignored

Lastly, the Court of Appeals said the trial court erred by not considering the best-interest factors in MCL 722.23 when vacating the custody and parenting-time provisions of the parties’ divorce judgment.

The trial court “only stated that it was vacating the child custody and parenting-time provisions ‘[b]ased upon the Court of Appeal’s 2019 order, the initiation of the Kalamazoo 2020 case, and the requirement that paternity be established before any entry of Custody, Parenting Time, or Child Support …,’” the Court of Appeals explained. Again, “neither this Court’s opinion in Dennis II, nor the Kalamazoo Circuit Court’s order of filiation, nor the reasoning that putative fathers are required to establish paternity before being granted custody, required the trial court to vacate the custody and parenting-time provisions of the judgment of divorce.”

Meanwhile, the Child Custody Act’s “clear and unambiguous language” requires that trial courts “shall not modify or amend its previous judgments or orders or issue a new order in order to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child,” the Court of Appeals emphasized.

“Even assuming that the trial court was correct, that custody and parenting-time provisions of the judgment of divorce are voidable, there presumptively existed a custodial environment for the minor child with defendant at the time that the trial court vacated those provisions.”

The Allegan County trial court did not consider the best interests of BT when vacating the custody and parenting-time provisions of the divorce judgment “that would otherwise presumptively alter the custodial environment of the child,” the Court of Appeals concluded.

As a result, “the trial court’s order was clearly erroneous because, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made when the trial court did not consider the best-interest factors as required by the Child Custody Act,” the Court of Appeals held, reversing and remanding the case for further proceedings.