Hunter v. Hunter

CourtSupreme Court of Michigan
Citation771 N.W.2d 694,484 Mich. 247
Docket NumberCalendar No. 2.,Docket No. 136310.
PartiesRobert HUNTER and Lorie Hunter, Plaintiffs-Appellees, v. Tammy Jo HUNTER, Defendant-Appellant, and Jeffrey Hunter, Defendant.
Decision Date31 July 2009

Deana Pollard Sacks and Karen E. Groenhout for amicus curiae the Center for Effective Discipline, the National Coalition to Abolish Corporal Punishment in Schools, and End Physical Punishment of Children.

Carlo Martina and Anne Argiroff, Plymouth, for amicus curiae the Family Law Section of the State Bar of Michigan.

Ashley E. Lowe, Robert A. Sedler, Michael J. Steinberg, and Kary L. Moss, for amicus curiae the American Civil Liberties Union Fund of Michigan.



This child custody case requires us to examine (1) the scope of the constitutional rights of natural parents in raising their children, (2) how provisions of Michigan's Child Custody Act (CCA)1 interact with those rights, and (3) whether the circuit court in this case applied the correct legal standards (a) in finding defendant,2 the children's biological mother, to be an unfit parent and (b) in awarding legal and physical custody of her four children to the children's paternal uncle and his wife.

We conclude that the circuit court did not apply the correct legal standards. We also overrule Mason v. Simmons,3 which the lower courts relied on, because its holding is inconsistent with the statutory language of the CCA and inconsistent with longstanding principles of Michigan custody jurisprudence. Therefore, we reverse the judgment of the Court of Appeals and remand the case to the circuit court for further proceedings.


In 2002, Tammy Hunter and her husband, Jeff Hunter, lived in Indiana with their four young children, who ranged in age from two to nine years. There is no evidence in the record that Indiana child welfare authorities ever investigated or sought jurisdiction over the family. Tammy and Jeff began using crack cocaine. In August 2002, Tammy left her four children in Jeff's care at home and did not return for six days. During her absence, Jeff contacted his brother and sister-in-law in Michigan, plaintiffs Robert and Lorie Hunter, and requested their assistance. Robert drove to Indiana, collected the children, and returned to Michigan.

Two months later, Tammy and Jeff came to Michigan and retrieved their children, claiming that they had successfully overcome their drug addictions. A short time later, however, plaintiffs learned that Tammy and Jeff had relapsed. Plaintiffs again drove to Indiana and brought the children to Michigan. Robert testified that he and Lorie told Tammy and Jeff that "we were taking the kids ... and told them they had to give us the kids and sign these guardianship papers." Tammy signed papers establishing a limited guardianship with plaintiffs.

Seven months later, in May 2003, Tammy and Jeff petitioned the Oakland Circuit Court to terminate plaintiffs' guardianship. However, they failed to appear at a June 2003 hearing because they were again using cocaine. On July 1, 2003, the circuit court dissolved the limited guardianship and appointed plaintiffs full guardians of the children.

Tammy's life further deteriorated when she was incarcerated in August 2004. She was released from prison in April 2005 and, three months later, filed a petition in the Oakland Circuit Court seeking an opportunity to visit her children.4 The circuit court required her to verify her drug-free status since her release from prison. She was required to undergo biweekly drug testing, attend Alcoholics Anonymous or Narcotics Anonymous meetings, and maintain weekly telephone contact with her children. She complied with each of these requirements.

On November 9, 2005, the circuit court ordered Tammy to begin paying child support and allowed supervised visits with the children. At a review hearing conducted six months later, the circuit court noted that Tammy's visitation had gone well and that she regularly paid child support. The circuit court expanded her parenting time, awarding her unsupervised weekend visits in Michigan during May and June 2006 and overnight, unsupervised visits in Indiana beginning in July 2006. The court also continued her child support obligation and ordered her to submit to weekly drug screens. She again met each of the court's requirements. By the time this case was filed, Tammy was having monthly unsupervised weekend visits with the children at her Indiana home and in Michigan.

In May 2006, plaintiffs filed this action seeking legal and physical custody of the children. The parties stipulated that the Friend of the Court (FOC) referee would make a preliminary finding regarding the children's established custodial environment and whether Tammy was a "fit parent," using Mason v. Simmons "as its guide."

The referee determined that the children had an established custodial environment with plaintiffs and that Tammy was an unfit parent. Tammy filed objections to the referee's report and requested a hearing de novo. Ten days after receiving the referee's report, the circuit court entered another order. It required Tammy to attend parenting classes, submit to random drug screens, participate in substance abuse counseling, and attend family counseling sessions with her children and her live-in boyfriend. Tammy again complied with all requirements.

At the evidentiary hearing, several witnesses testified regarding the circumstances in 2002 and 2003 that led to the establishment of plaintiffs' guardianship of the children. Tammy testified that she had remained drug-free since August 2004 and supplied the court with a compendium of negative drug screen reports. She also testified that she earned $10.50 an hour as an assistant sales manager and lived with her boyfriend in a four-bedroom home in Indiana. A family therapist who had evaluated the children pursuant to a circuit court order reported that the children were "attached" to Tammy and "have a preference to move [in] with her full time."

The circuit court concluded that Tammy was not a fit parent. In its bench ruling, the court gave its reasons:

Now, as to the issue of mom's fitness.

I believe that mom is a very nice person.

That she loves these children very dearly and I think they love her.

And I'm impressed by the progress that she has made.

But I don't believe that her love for the children is equivalent to being a fit parent.

When we look at the definition of fitness, it's not about whether she's a nice person, it is not about whether today she has made progress—and, again, she has made progress—it is about what happened in conjunction with these kids.

And in 2002 the parents were drug addicted.

They could not provide a home for the children and the family intervened and rather than having [Children's Protective Services] involvement and have these children go to foster care the family took over and stepped in and provided a stable and loving home for these four kids, it doesn't happen very often and it's wonderful when that does happen and I think, again, these kids are doing as well as they are today because of that intervention.

And mom has made progress but there are still numerous questions and numerous issues.

These kids have never really lived with her for the last five years.

And in Dr. [Jerome] Price's report he talks about that, that they regard going to mom's as vacation time.

They have not had to do the grueling, day to day, sort of parenting and be tested that way so we can make some determination about what the current situation is.

And mom lives with a man, who seems like a very nice individual also, a hard working person, but they live in an out of wedlock relationship and exposing the children to an out of wedlock relationship, given all of the other instability of their lives at this point is questionable judgment.

I heard his testimony that he's listed her as a beneficiary on his life insurance and he expects that he will leave her his assets should he pass away.

But the truth of the matter is she has no legal rights as a live together person.

There is a reason that we have marriage in this society and marriage protects her.

The relationship she is in gives her no protection and if at any time Mr. McConnell wants to tear up the letter, change the beneficiary, move out, he, of course is free to do so, as she is, and there are no legal ramifications to that.

So she is not really very well protected and without his assistance she cannot maintain the children.

She's been in a home for six months; that's a lease home and she admitted herself that she could not possibly maintain the children financially without Mr. McConnell being there and without his financial assistance.

So I think she has made terrific strides but I don't think she's at a point yet where we can say she is able to provide a stable and secure home for these four children, who have been out of her care for five years.

So I don't believe that's the definition of fitness.

The court then held a best interests hearing. After considering the testimony, the court agreed with the referee's findings. The court determined that 9 of the 12 best interest factors5 favored plaintiffs and that the parties were...

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