Bowie v. Arder, Docket Nos. 92477
| Decision Date | 22 September 1992 |
| Docket Number | A,92629,Nos. 4-5,Docket Nos. 92477,s. 4-5 |
| Citation | 441 Mich. 23,490 N.W.2d 568 |
| Parties | Darresia BOWIE, Plaintiff-Appellant, v. Milton Junior ARDER, Defendant-Appellee. Thanh Quoc DUONG and Tuyet Trieu, Plaintiffs-Appellees, v. Long Han HONG and Phan Hue Ong, Defendants-Appellants. Calendarpril Term 1992. |
| Court | Michigan Supreme Court |
Joseph S. Smigiel, Jr., Grand Rapids, for plaintiffs-appellees.
Thomas R. McCombs, Flint, for defendant-appellee.
Earl R. Spuhler, Fenton, Anne Argiroff, Detroit, Roger Law, Law, Weathers & Richardson, P.C., Grand Rapids, for defendants-appellants.
Victor, Robbins & Bassett by Scott Bassett, Birmingham, for amicus curiae, State Bar of Michigan Family Law Section.
Janet E. Lanyon, Women Lawyers Ass'n of Michigan, Bloomfield Hills, Suellyn Scarnecchia, Julie Kunce Field, University of Michigan Law School, Women in the Law Clinic, Ann Arbor, Ann L. Routt, Legal
Services of Southeastern Michigan, Ann Arbor, Michael R. Yales, Legal Services of Southeastern Michigan, Monroe, Kenneth C. Penokie, Legal Services of Northern Michigan, Escanaba, John Forczak, Michigan Legal Services, Detroit, amicus for defendant-appellee.
We granted leave to appeal in these cases to resolve several issues with respect to original child custody actions in circuit court. The questions presented are: 1) Does the circuit court have subject matter jurisdiction to hear and determine an original third-party child custody complaint under the Child Custody Act, M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 25.312(1) et seq.? 2) If the circuit court does have jurisdiction over such a claim, does a third party have standing to petition for custody under the act because the child resides with the third party, or resided with the third party in the past? 3) Does the circuit court have subject matter jurisdiction over an original petition for custody under the act where there is no dispute with regard to the custody of a child? and 4) Where there has been no finding of parental unfitness, and absent divorce or separate maintenance proceedings, is a circuit court award of custody to a third party rather than a parent, on the basis of the best interests of the child, a violation of due process?
We hold that the circuit courts have subject matter jurisdiction to hear and determine child custody actions pursuant to the Child Custody Act, without regard to the identity of the party who files the action. We further hold that, although the circuit courts do not lack subject matter jurisdiction to hear an original action for custody filed by a third party, a third party does not gain standing to petition for custody under the act because a child resides with the third party, or resided with the third party in the past. Finally, we hold that while the circuit courts have subject matter jurisdiction to hear and determine bona fide custody disputes, a circuit court exceeds its jurisdiction when it enters an order transferring custody from a parent to a third party where there is no dispute between the parties with regard to the custody of the child. Because we resolve these cases as a matter of statutory construction, we do not reach the constitutional question.
Thus, we affirm the decision of the Court of Appeals in Bowie v. Arder, 190 Mich.App. 571, 476 N.W.2d 649 (1991), on grounds different from those relied on by the lower courts, and we reverse the decision of the Court of Appeals in Duong v. Hong, 191 Mich.App. 462, 478 N.W.2d 922 (1991).
In each of these cases the parent or parents of a child allowed the child to reside with one or more third parties 1 for a period of time without either the parents or the nonparents taking steps to formalize the arrangement. In each case, however, the third parties filed an action in circuit court pursuant to the Child Custody Act, alleging that the child had resided with the nonparents for a period of time and also alleging that giving custody of the child to the nonparents would be in the best interests of the child.
Carolyn Bowie, now deceased, and Milton Arder affirmed that they were the natural parents of Ashlee Bowie. 2 After Ashlee's birth on January 6, 1988, Carolyn and Ashlee lived with Carolyn's mother, Darresia Bowie. Milton lived elsewhere. Less than a year later, on December 9, 1988, Carolyn died. Since the spring of 1990 Ashlee has lived with her father.
The parties dispute the events and circumstances of the period between Carolyn's death in December 1988 and the spring of 1990. Darresia alleges that Ashlee continued to live with her during this period and that Milton had minimal contact with Ashlee and herself. She further alleges that Milton demonstrated little love, care, or concern for the child, and that he picked up Ashlee, saying he would take her for a ride in his car, and then failed to return the child to her grandmother. Milton denies these allegations and alleges that he left Ashlee with Darresia for a short period of time. Milton further alleges that he asserted his parental rights in the spring of 1990 when he picked up Ashlee at Darresia's home and brought the child home to live with him.
Darresia filed an action in circuit court on May 22, 1990, seeking custody of Ashlee pursuant to the Child Custody Act. Following a hearing, the circuit court dismissed the action for lack of subject matter jurisdiction, relying on Ruppel v. Lesner, 421 Mich. 559, 364 N.W.2d 665 (1984). Darresia appealed as of right, and the Court of Appeals affirmed. We granted leave to appeal. 439 Mich. 918 (1992).
Long Han Hong and Phan Hue Ong are the natural parents of Kaye Star Hong, born December 30, 1981. Long and Phan emigrated from Vietnam in early 1981 and 1980, at the ages of twenty-one and nineteen, respectively. Phan gave birth to the couple's first child, a son named Oai, in the United States before her husband Long arrived here. The couple also have a younger daughter, Lily. Upon their arrival in the United States, Long and Phan had no home or jobs, nor could they speak, read, or understand English.
During an English class, Long and Phan met another couple who had emigrated from Vietnam. Mike Seng Yang 3 and Tuyet Trieu came to the United States in 1971. At the time the couples met, Mike and Tuyet were in their early thirties and did not have any children.
For reasons that are in dispute, Long and Phan allowed Kaye Star to live with Mike and Tuyet when she was approximately four months old. After caring for Kaye Star for approximately two months, Mike and Tuyet filed an action in circuit court on June 29, 1982, seeking custody of Kaye Star pursuant to the Child Custody Act. Long and Phan stipulated to the awarding of custody to Mike and Tuyet, 4 and the circuit court entered an order consistent with the stipulation on July 16, 1982. 5 Before entry of the order, the parties did not appear in court and no hearing was held.
The parties dispute whether the transfer of custody to Mike and Tuyet was intended to be permanent. Mike and Tuyet allege that Long and Phan wanted them to adopt Kaye Star, but discovered that a consent adoption would not be possible, 6 and instead decided to give Mike and Tuyet permanent custody of Kaye Star. Long and Phan deny these allegations, and allege that the arrangement was never intended to last more than three years or until Mike and Tuyet had their own child, with the option to terminate the arrangement sooner if Long and Phan desired.
In the time period from July of 1982, when the custody order was entered, until March of 1983, there does not appear to be any dispute that Long and Phan continued to visit Kaye Star while she resided with Mike and Tuyet. The parties' relationship appears to have been amicable at this time. It also appears that Long and Phan provided some assistance in the form of clothes and food, but the extent of this assistance is in dispute.
For reasons that are unclear, in March of 1983 Long and Phan moved to California. They did not take action to terminate the custody arrangement at this time. The parties disagree over promises made regarding contact between Long and Phan and Kaye Star after the move to California.
Six months later, Tuyet gave birth to a baby boy, whom Mike and Tuyet named Steven. By December of 1983, when Kaye Star was two years old, the parties' relationship was no longer amicable. Long and Phan wanted to terminate the custody arrangement and asked that Kaye Star be returned to them. The reason for Long and Phan's desire to terminate the arrangement is in dispute. Mike and Tuyet allege that Long and Phan were unhappy with them because they would not assist in sponsoring relatives of Long and Phan to allow them to immigrate to the United States. Long and Phan deny this allegation and allege that they wanted to terminate the arrangement because they feared Mike and Tuyet would favor their own son over Kaye Star. Mike and Tuyet did not consent to the termination of the custody arrangement.
Long and Phan contacted legal counsel and filed a petition for change of custody on September 14, 1984, alleging, inter alia, that they intended the custody arrangement to be temporary only. Kaye Star was almost four years old at this time. The case was referred to the Family Services Association for an evaluation. The evaluator recommended that Kaye Star remain with Mike and Tuyet on a permanent basis, and that Long and Phan not be granted regular visitation. The evaluator felt that the situation should be treated like an adoption. After a trial, the circuit court, in an order dated May 2, 1985, ordered that custody would remain with Mike and Tuyet, and that Long and Phan would have weekly visitation with Kaye Star.
By the time the circuit court denied Long and Phan's petition for a change of custody, Mike and Tuyet had two more children, twin sons born in 1985. Also, at some point, Mike and Tuyet began calling Kaye Star "Jenny." In ...
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