Third Party Custody Decisions Sets the Trial Court Straight

The Court of Appeals in Frowner v Smith, published opinion of the Court of Appeals, issued April 26, 2012 (Docket 305704), addressed whether a parent has to satisfy the Vodvarka threshold to change custody from a third party custodian. The Trial Court very clearly believed that it knew the law on this issue, and in fact, chastised the parent for challenging the third party custodian: "The child is already in an established custodial environment with the [third party custodians] and you have parenting time, pursuant to the last Court order. . . That’s the law in Michigan. And you should consult with a lawyer if you think it’s anything different than that. Trust me, I’m well versed in it."

In a published opinion, the Court of Appeals confirmed what the Michigan Supreme Court has stated in Hunter v Hunter 484 Mich 247, 263; 771 NW2d 694 (2009) – that when there are competing presumptions between a third party custodian with whom a child has an established custodial environment and a biological parent who does not have custody of the child, the latter presumption (of the parent) trumps the third party custodian. Accordingly, the Frowner court held the trial court clearly erred by holding that a parent has to demonstrate the Vodvarka threshold of proper cause or change of circumstances in order for a trial court to evaluate whether it can change custody from the third party custodian to the parent. Instead, under MCL 722.25(1), the third party custodian has to demonstrate by clear and convincing evidence that it is not in the child’s best interest to have custody in the parent. "[D]ue regard for Smith’s parental rights requires that the circuit court presume him to be the proper caretaker of his child. Enforcing this presumption requires that any opposing presumption, shielding the child from a custodial change absent a showing of proper cause or changed circumstances, must yield."