Heltzel v. Heltzel
Decision Date | 10 January 2002 |
Docket Number | Docket No. 232736. |
Citation | 638 N.W.2d 123,248 Mich. App. 1 |
Parties | Charles Lee HELTZEL, Plaintiff, v. Crystal S. HELTZEL, a/k/a Crystal S. Tapia, Defendant-Appellant, and John Yonkers and Robin Yonkers, Intervenors-Appellees. |
Court | Court of Appeal of Michigan — District of US |
Lois Jewell and John H. Vetne, Niles, Salisbury, MA, for Crystal S. Heltzel.
Westrate & Holmstrom, P.C. (by Roosevelt Thomas), Dowagiac, for the appellee.
Judith Fox, South Bend, IN, for Notre Dame Legal Aid Clinic.
Karen S. Sendelbach, Ann Arbor, for Family Law Section, State Bar of Michigan.
Ann L. Routt, Ann Arbor, for Domestic Violence Project, Inc./Safe House. Before: GRIFFIN, P.J., and GAGE and METER, JJ.
In this child custody dispute, defendant appeals as of right a trial court order awarding John and Robin Yonkers physical custody of the minor child and granting defendant and the Yonkerses joint legal custody of the minor. The trial court concluded that defendant, the biological mother of the minor, failed to make the showing necessary to overcome the statutory presumption favoring the minor's continued placement in the established custody of the Yonkerses, who are defendant's parents and the minor's maternal grandparents. We reverse and remand.
Plaintiff and defendant married on July 1, 1995, and resided in Cass County. On May 2, 1996, defendant gave birth to a daughter, the minor involved in this case. The marriage did not endure, however. By the time plaintiff filed for divorce on April 30, 1997, defendant had left the marital home and moved with the child to the grandparents' Elkhart, Indiana, home. Defendant's mother cared for the child while defendant worked full time. Both plaintiff and defendant sought physical custody of the child.
On August 29, 1997, the trial court entered a stipulated order for the child's temporary custody and support. With respect to custody, the order provided that the parties would share legal custody of the child, but that defendant "shall have temporary physical custody of the minor... until they [sic] reach the age of eighteen years, or graduates from high school, whichever occurs last." Plaintiff would enjoy "reasonable and liberal" parenting time and had to make $60 weekly child support payments.1
A divorce judgment, dated November 21, 1997, was entered on December 1, 1997. The judgment incorporated the custody, parenting time, and child support provisions contained in the August 29 order.2
On November 26, 1997, pursuant to the parties' stipulation, the trial court entered an order modifying the divorce judgment.3 Relevant to this appeal, the November 26 order stated as follows regarding the child's physical custody:
Physical custody of the minor child shall be with the maternal grandparents, JOHN AND ROBYN [sic] YONKERS, who [sic] the minor child, along with the Defendant, have been residing with since the commencement of this action. Mr. and Mrs. Yonkers shall retain physical custody of the minor child until such time as both Defendant and Mr. and Mrs. Yonkers have notified the Cass County Friend of the Court, in writing, that Defendant is prepared to assume the physical custody of the minor child. Upon receipt of said notice by the Cass County Friend of the Court, physical custody of the minor child shall revert back to Defendant and said child will remain with Defendant until she reaches the age of eighteen (18) years or graduates from high school, whichever occurs last, or until further order of this Court.
The November 26 order granted plaintiff and defendant "reasonable and liberal" parenting time.4 Plaintiff and defendant and their attorneys signed the modification order, but the grandparents did not, and the order did not denote the grandparents as parties to the action. The grandparents never formally moved to intervene in the action.
On February 28, 2000, defendant moved for entry of an order that the grandparents show cause why they had thwarted defendant's reasonable visitation with the child. The motion asserted that defendant's mother permitted defendant only supervised visitations. On March 2, 2000, defendant filed a "petition to reinstate original divorce judgment dated 21 November 1997," thus attempting to eliminate the November 26, 1997, modification order's grant of the child's temporary physical custody to the grandparents. In an affidavit accompanying her petition, defendant stated that she had signed the stipulated order modifying the divorce judgment "[a]t my mother's insistence ... so that [the child] would be covered under my parents' insurance policy," and that "[m]y mother made the arrangements directly with my attorney." According to defendant's affidavit, the grandparents never allowed defendant, who had remarried and had another child, an unsupervised visit with the child. Defendant averred that she loved her child and felt prepared to assume the child's physical custody, but that the grandparents refused to permit the child's removal from their custody.
On March 10, 2000, the grandparents responded to defendant's petition. The grandparents asserted that for over two years the child had resided with them in an established custodial environment, and that the child's best interests were served by her current placement. The grandparents' response also mentioned that defendant had not visited overnight with the child since September 1997, and that "the present husband of the Defendant... is a known child molester." The grandparents also accused two sons of plaintiff's girlfriend of molesting the child while the child visited plaintiff.5 The grandparents suggested that the trial court order psychological evaluations of plaintiff and defendant and their current significant others, as well as the grandparents themselves; otherwise investigate the current circumstances relevant to the issue of the child's custody; and restrict plaintiff and defendant to supervised visitations with the child.
On March 23, 2000, pursuant to plaintiff's and defendant's stipulation, the trial court ordered the restoration of the child's physical custody with defendant, that plaintiff and defendant share legal custody of the child, and that plaintiff have liberal, reasonable visitation with the child. On the same day, the trial court entered an "Order reinstating original divorce judgment dated 21 November 1997."
Shortly thereafter, however, on April 3, 2000, the trial court ordered that the friend of the court perform a custody investigation and make a recommendation, that a hearing regarding custody and visitation be scheduled, and that pending the investigation plaintiff and defendant have only supervised visitation with the child.6 Pursuant to stipulation by plaintiff, defendant, and the grandparents, the trial court on April 26, 2000, ordered that plaintiff and defendant could visit the child on one day every other weekend, but that the child have no contact with either plaintiff's girlfriend's children or defendant's husband.7
At the July 26, 2000, hearing before a referee, defendant testified that during her divorce proceedings from plaintiff she and the child moved in with the grandparents, intending to remain there only until defendant located alternate suitable housing. By approximately August or September 1997, defendant's relationship with Oscar Tapia, her current husband, had become serious. Defendant obtained employment in Plymouth, Indiana, where Tapia lived, and moved in with Tapia at his parents' home. Defendant explained that although she had prepared to bring the child to her new residence for a weekend visitation, the grandparents suggested that the child should remain with them because defendant had just begun her relationship with Tapia and the child should not so soon be placed in another new environment. Defendant agreed to leave the child with the grandparents.
Defendant indicated that she subsequently acceded to the grandparents' repeated suggestions that she sign the stipulation entered on November 26, 1997, granting the grandparents temporary physical custody of the child, to make the child eligible for the grandfather's medical insurance coverage. According to defendant, the grandparents and her divorce attorney, whom the grandparents had retained for defendant, prepared the stipulation.
Defendant estimated that within the next two to three months, she had obtained insurance through her employer and informed the grandparents that she felt prepared to assume physical custody of the child. The grandparents informed defendant, however, that they would not permit her to have custody of the child because the grandmother had spoken with Tapia's former spouse regarding allegations of child sexual abuse against Tapia, and the grandparents viewed Tapia as a child molester. Documentation from an Indiana court reflected that Tapia had been charged with two counts of child molestation and one count of battery involving a child of his former wife. Pursuant to a plea bargain, Tapia had pleaded guilty of battery, and the child molestation charges were dismissed. Tapia denied that he had ever engaged in sexual contact with a child, but admitted that he had spanked his former wife's unruly daughter, in the former wife's presence and as the former wife herself had done. Tapia averred that his former wife fabricated the molestation charges during their divorce proceedings, and explained that on his counsel's advice he opted to avoid a trial on the charges because he already owed his attorney approximately $7,000 and had no money with which to go to trial. Tapia opined that to some extent the grandparents' disapproval of him was race related, but indicated his understanding of the grandparents' concern owing to the molestation allegations. Other than the court documentation of the charges against him, the record contained no specific evidence of any...
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