Trial Court Wrongly Awarded Custody To Third Party With ‘No Legal Rights’
The trial court “committed clear legal error” in this custody case by not applying the “parental presumption” or making the required best-interest determination before ordering that the plaintiff-mother’s child remain with the defendant, a putative father who had no legal rights to the child, the Michigan Court of Appeals has ruled.
In Hill v Johnson (Docket No. 369852), the defendant-putative father was not listed on the child’s birth certificate, did not sign an affidavit of parentage and did not participate in genetic paternity testing. In November 2023, the plaintiff asked the defendant to temporarily care for the child (JH) because her housing was unstable. According to the plaintiff, a short time later she asked the defendant to return JH because “housing was no longer a concern” but the defendant refused. The plaintiff asserted the defendant “did not allow plaintiff to see or speak with JH, refused to provide his current address, and blocked plaintiff’s phone number.” However, according to the defendant, he tried “repeatedly” to return JH to the plaintiff, but the plaintiff refused to take back the child.
The plaintiff filed an emergency ex parte motion with the Wayne County Circuit Court for JH’s immediate return in February 2024. She claimed that because paternity was not established, the defendant had no legal rights to JH. The trial court, after “briefly receiving testimony from the parties,” denied the plaintiff’s motion, initially ordering that she have parenting time by video call. After the plaintiff’s attorney questioned the trial court about awarding the defendant – a third party with no legal rights to JH – custody without a best-interest evaluation, the trial court “reversed course and simply denied the motion without parenting time.”
The plaintiff appealed, arguing the trial court wrongly denied her motion without a showing – by clear and convincing evidence – that it was in JH’s best interests to remain with the defendant, a third party.
The Court of Appeals reversed the trial court’s ruling and remanded the case.
The trial court “committed clear legal error by failing to apply the parental presumption or otherwise make a best-interests determination as required by MCL 722.25(1) before ordering that JH remain placed with defendant,” the Court of Appeals said.
Judge Philip P. Mariani and Judge Michael J. Riordan joined the unpublished opinion.
Judge Kathleen A. Feeney concurred in part and dissented in part. “I agree with the majority that the trial court erred by refusing to return the child to plaintiff-mother, but I do so on the basis of the well-established presumption in favor of a fit natural parent’s fundamental constitutional right to parent his or her child, pursuant to MCL 722.25(1); that this presumption controls over the presumption in favor of an established custodial environment with a third-party, pursuant to MCL 722.27(1)(c); and the policy in Michigan that a parent who voluntarily and temporarily relinquishes custody of the child should not suffer a penalty for this choice.”
The Statutes
In its analysis, the Court of Appeals first examined the applicable statutes, including the Child Custody Act (CCA), MCL 722.21 et seq., which recognizes that “’[a] natural parent possesses a fundamental interest in the companionship, custody, care, and management of his or her child’ and that his or her ‘right to custody’ necessarily ‘rests on a constitutional foundation.’”
Moreover, the CCA “must be read in context not only with judicial decisions interpreting it but also within the broad statutory framework of family law,” the Court of Appeals said. “This includes The Paternity Act, MCL 722.711 et seq., and the Acknowledgement of Parentage Act (APA), MCL 722.1001 et seq., both of which provide a means of establishing paternity for a child born out of wedlock.”
Under the APA, “[a]bsent an acknowledgement of parentage, a putative father has no right to custody of the child …,” the Court of Appeals observed. Meanwhile, The Paternity Act “provides that paternity may be established by the parties’ ‘consent to an order naming the man as the child’s father’ or, if the parties do not consent, by genetic testing (court-ordered or otherwise). … Upon making a paternity determination under the Paternity Act, the trial court ‘may enter an order of filiation’ establishing paternity.”
In light of these statutes, “we conclude that defendant is not the ‘natural father’ of JH, and instead, is a ‘third person’ under the CCA,” the Court of Appeals said. “As plaintiff points out, defendant has not established paternity of JH under either of the above statutes. … Defendant testified that he did not sign an affidavit of parentage, which is required to establish paternity under the APA. … Further, the court and the parties acknowledged … that genetic testing had not been completed, and according to plaintiff’s brief on appeal, no testing has been conducted since. … Nor did the parties consent to an order naming defendant as JH’s father. … A review of the lower court’s register of actions also reveals that no orders of filiation or judgment of paternity have been entered. … Indeed, it appears the case has languished since the trial court abruptly changed course and denied plaintiff’s request to retrieve her young child.”
Furthermore, in a dispute between a parent and a third party, the CCA “creates a statutory presumption that custody with the parent is in the child’s best interests as described in MCL 722.23,” the Court of Appeals explained. “This remains true even if the child had been living with the third party. … This presumption may be overcome only if it ‘is established by clear and convincing evidence’ that custody with the third party, rather than the parent, is in the child’s best interests.”
In addition, “Michigan has an important public policy favoring the return of children to custodial parents who have temporarily transferred custody in order to meet those children’s needs, … and ‘a parent who voluntarily and temporarily relinquishes custody to foster his or her child’s best interests should not suffer a penalty for [such an] election,’” the Court of Appeals observed.
Trial Court ‘Failure’
In this case, the trial court recognized the defendant had not established paternity, the Court of Appeals noted. “The [trial] court also explicitly acknowledged that it had not conducted an evaluation of the best-interests factors, but nonetheless denied plaintiff’s motion to return JH. When asked about defendant’s lack of a legal status as JH’s father, the court responded, ‘Well [plaintiff] felt good enough to take him over there.’ Furthermore, the court did not allow plaintiff any parenting time, despite initially recognizing that plaintiff ‘need[ed] to see the child’ and stating that it ‘ha[d] no problem with her seeing him.’ The extent of the court’s reasoning for denying the motion was that it seemed to find plaintiff untrustworthy, it was not satisfied it would be putting JH ‘in a better situation given mom’s instability,’ and it was not satisfied it was in JH’s best interests to return him to plaintiff.”
According to the Court of Appeals, the trial court could have awarded the defendant ongoing custody only if he “’prove[d] that all relevant factors, including the existence of an established custodial environment and all legislatively mandated best interest concerns within MCL 722.23, taken together clearly and convincingly demonstrate[d] that the child’s best interests require placement with’ defendant rather than plaintiff. … And in performing that analysis, the court was required to bear in mind Michigan’s ‘important public policy favoring the return of children to custodial parents who have temporarily transferred custody in order to meet those children’s needs.’”
Here, “[n]ot only did the trial court wholly fail to conduct such an evaluation, its determination was otherwise unsupported by the slim testimony at the hearing,” the Court of Appeals said. “In fact, defendant did not contest the return of JH to plaintiff, had no concerns about returning JH to plaintiff so long as plaintiff had ‘a place where [JH] can lay his head,’ and indicated that he could return JH to plaintiff that day if necessary. And plaintiff, for her part, testified she had a place to stay with her best friend, including a shared room for JH.”
Therefore, “we conclude the trial court committed clear legal error by failing to apply the parental presumption or otherwise make a best-interests determination as required by MCL 722.25(1) before ordering that JH remain placed with defendant,” the Court of Appeals held. “To the extent JH currently remains in the custody of defendant (as appears to be the case), a best-interests hearing must be held as soon as possible, and no later than 28 days from the issuance of this opinion, to determine whether continued custody with defendant is warranted under the proper legal standards ….”
