Mason v. Simmons

Decision Date28 June 2005
Docket NumberDocket No. 257692.
Citation704 N.W.2d 104,267 Mich. App. 188
PartiesDominique Davis MASON, Plaintiff-Appellee, v. William SIMMONS, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

P. Greg Gulick, Lansing, for the plaintiff.

Philip E. Hodgman, East Lansing, for the defendant.

Before: OWENS, P.J., and MARK J., CAVANAGH and NEFF, JJ.

NEFF, J.

In this child custody dispute, defendant father appeals as of right an order of the family division of the circuit court granting him joint legal custody of his eleven-year-old daughter, Dionna, but ordering that physical custody remain with plaintiff, the child's half-sister and legal guardian, who has had primary care of Dionna for five years following their mother's death. We affirm.

The trial court found that defendant was not entitled to the traditional strong presumption that the award of custody to the natural parent serves the child's best interests because defendant had not sought a paternity determination and had abandoned his parental role after the child's mother died. The court nevertheless accorded defendant deference as the natural parent by placing the burden of persuasion on defendant to show by a preponderance of evidence, rather than clear and convincing evidence, that a change of physical custody to defendant was in the child's best interests.

Following a hearing de novo, the court concluded that it was in Dionna's best interests to continue physical custody with plaintiff, but the court granted defendant primary physical custody during the summer and extended parenting time, including alternate weekends; every Thanksgiving weekend, including all Thanksgiving holidays; every Christmas break, including all Christmas holidays; and parenting time when Dionna is not in school over a three-day weekend.

I. Issue

The question before this Court is whether the trial court erred in failing to accord defendant the constitutional deference to which a natural parent is generally entitled in determining a child's best interests in a custody dispute between a parent and a third person pursuant to Heltzel v. Heltzel, 248 Mich.App. 1, 23-24, 27-28, 638 N.W.2d 123 (2001), which requires that Michigan's statutory parental presumption, MCL 722.25(1), be given priority over the established custodial environment presumption, MCL 722.27(1)(c), and that the third person prove by clear and convincing evidence that all relevant factors, taken together, MCL 722.23, demonstrate that the child's best interests require placement with the third person.

We hold that the standard and reasoning of Heltzel do not govern this case because the trial court found that defendant was not a fit parent on the basis of his neglect of Dionna, and, therefore, the trial court did not clearly err in according defendant a lesser standard of deference than that announced in Heltzel in determining custody.

II. Facts

It is undisputed that defendant is the natural father of Dionna, although his exact involvement in her life before her mother died is unclear. Defendant was not married to Dionna's mother and it appears that he never resided with her. The mother did not acknowledge defendant as the father at the time of Dionna's birth in November 1993. Nor did defendant seek to be legally acknowledged as Dionna's father.

According to the record, from birth until age five, Dionna lived with her biological mother in Detroit, in which city defendant also lived. Until the mother died in May 1999, defendant did have contact with Dionna. When Dionna's mother died, plaintiff, who lived in Lansing, applied for guardianship of Dionna, which was granted in July 1999. After the mother's death, defendant had no contact with Dionna for three years. Dionna lived with plaintiff and her husband1 and attended school in Lansing.

It was not until 2002, when plaintiff sought medical coverage for Dionna through the Family Independence Agency2 (FIA) and the state filed a paternity action, that defendant legally acknowledged that he was Dionna's father. Following a paternity test, defendant signed an acknowledgement of paternity in May 2002, and was ordered to pay child support, including an arrearage for back child support. Two months later, in July 2002, defendant filed a motion for a change of custody of Dionna. After a conciliation conference with the Friend of the Court (FOC) conciliator, an order was entered granting plaintiff legal and physical custody of Dionna, and granting defendant parenting time. Defendant appealed the conciliator's order and, following an investigation and hearing before an FOC referee, the conciliator's decision was reversed. The FOC referee recommended that defendant be granted custody of Dionna because plaintiff failed to prove by clear and convincing evidence that custody should be awarded to her.

Plaintiff then filed objections to the referee's recommendation seeking review de novo of the referee's decision. The court conducted a hearing de novo over three days from November 2003 to January 2004, during which the parties presented additional testimony and evidence.

According to the testimony, defendant is a retired Detroit police officer. He testified that he was employed as a police officer in the court system for twenty years and was familiar with court procedures. At the time Dionna was born, he had no doubt that he was her father. However, he did not seek paternity because that was the mother's wish and he thought he could do nothing about it. He testified that while the mother was alive, he was regularly involved in Dionna's life, taking her places, picking her up from school, and doing other things that any father living in the house would do.

The parties dispute whether defendant was notified that plaintiff was seeking guardianship of Dionna after her mother's death. Defendant testified that he first learned that plaintiff had been appointed as Dionna's guardian sometime in 2002; however, between 1999 and 2002, he was uncertain of Dionna's whereabouts and took no legal action in regard to Dionna. Defendant had not paid support for Dionna except on an extremely infrequent basis. However, defendant had supported ten children, including three other minor children for whom he was currently paying child support.

Plaintiff testified that she is Dionna's half-sister and that she assumed guardianship of Dionna when their mother died. Further, Dionna calls plaintiff "Mom." Dionna's teacher testified that Dionna was smart, interacted well with friends, and was generally doing well in school. She stated that plaintiff was very involved with Dionna's school activities.

The court heard additional testimony, and the parties stipulated the consideration of the record before the FOC referee. Before rendering its decision, the court ruled that given defendant's neglect of Dionna after her mother died, defendant was not entitled to the strong statutory presumption in favor of a fit parent under which the court must presume that awarding custody to the parent is in the child's best interests. Accordingly, the burden of proof and burden of persuasion announced in Heltzel did not apply because defendant was not entitled to the constitutional deference generally accorded fit parents with regard to their children. Instead, the court stated that it was applying a lesser standard of deference to defendant, under which he had the burden of persuasion to show by a preponderance of evidence that a change of custody to defendant was in the best interests of the child.

The court weighed the best interests factors and granted joint legal custody to both parties, but ordered that physical custody continue with plaintiff. However, the court granted defendant extended parenting time, as noted above.

III. Standard of Review

To expedite the resolution of a child custody dispute by prompt and final adjudication, all custody orders must be affirmed on appeal unless the trial court's findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. MCL 722.28; Harvey v. Harvey, 257 Mich.App. 278, 282-283, 668 N.W.2d 187 (2003) (quoting MCL 722.28), aff'd on other grounds 470 Mich. 186, 680 N.W.2d 835 (2004). "`Questions of law are reviewed for clear legal error. A trial court commits clear legal error when it incorrectly chooses, interprets or applies the law.'" Vodvarka v. Grasmeyer, 259 Mich.App. 499, 508, 675 N.W.2d 847 (2003) (citations deleted).

IV. Child Custody Act

"The Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq., governs child custody disputes between parents, agencies, or third parties." Booth v. Booth, 194 Mich.App. 284, 292, 486 N.W.2d 116 (1992); Harvey, supra at 291, 668 N.W.2d 187. The act is a comprehensive scheme intended to promote the best interests of children, and it is to be liberally construed. MCL 722.26(1); Harvey, 470 Mich. at 191-192, 680 N.W.2d 835; Thompson v. Thompson, 261 Mich.App. 353, 361 n. 2, 683 N.W.2d 250 (2004). The act creates presumptions and standards by which competing custody claims are to be judged and sets forth the procedures and the forms of relief available. Ruppel v. Lesner, 421 Mich. 559, 565, 364 N.W.2d 665 (1984); Porter v. Overton, 214 Mich.App. 95, 100, 542 N.W.2d 288 (1995). "Above all, custody disputes are to be resolved in the child's best interests," according to the factors set forth in MCL 722.23. Eldred v. Ziny, 246 Mich.App. 142, 150, 631 N.W.2d 748 (2001).

Statutory presumptions affect the burden of proof. In a dispute between a parent and an agency or third party, MCL 722.25(1) creates the presumption that the child's best interests are served by awarding custody to a parent. The contrary must be established by clear and convincing evidence. Id.; LaFleche v. Ybarra, 242 Mich.App. 692, 696-697, 619 N.W.2d 738 (2...

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