Rummelt v. Anderson, Docket No. 142697

• Decision Date: 28 October 1992
• Docket Number: Docket No. 142697
• Citation: 493 N.W.2d 434,196 Mich.App. 491
• Parties: Robert Lee RUMMELT, Petitioner-Appellant, v. Doris ANDERSON, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 434

493 N.W.2d 434

196 Mich.App. 491

Robert Lee RUMMELT, Petitioner-Appellant, v. Doris ANDERSON, Respondent-Appellee.

Docket No. 142697.

Court of Appeals of Michigan.

Submitted June 4, 1992, at Grand Rapids.

Decided Aug. 19, 1992.

Approved for Publication

Oct. 28, 1992, at 9:00 a.m.

Released for Publication Jan. 19, 1993.

Legal Aid of Western Michigan by William J. Weir, III, Grand Rapids, for respondent-appellee.

Before HOLBROOK, P.J., and BRENNAN and RICHARD ALLEN GRIFFIN, JJ.

PER CURIAM.

Petitioner, Robert Lee Rummelt, appeals as of right a July 1, 1991, Kent Circuit Court order awarding custody of his daughter, born April 25, 1989, to the respondent, Doris Anderson. Respondent is the child's great-aunt. We affirm.

The child was born to Kathleen Price premature and addicted to cocaine. During the pregnancy, Price regularly consumed alcohol and cocaine. Petitioner assisted Price in acquiring these substances. Price supported herself and her substance addictions by prostitution. Petitioner became involved with Price while he was married to another woman. Petitioner visited the child regularly after her birth and helped support her financially until the death of Price on October 15, 1989.

After Price died, her mother, Ruth Bryant, took physical custody of both of Price's daughters. However, she was unable to keep the children because of her health, and asked her sister, the respondent, to assume responsibility for them. Physical custody of Price's two daughters remains with the respondent at the present. Respondent has not allowed the petitioner to see his child since Price died.

On November 3, 1989, petitioner filed a petition against Bryant, seeking custody of his child. Respondent was later joined as a party. After a prehearing conference, a blood test established a high probability that the petitioner was the child's father, and the court entered an order recognizing the petitioner's paternity. Petitioner then filed a motion seeking custody of the child. Instead of hearing arguments on that motion, the circuit court granted the parties' request for a trial regarding custody.

Following trial, the trial court found that the respondent's home had become the child's established custodial environment. The trial court then evaluated the conflict of two presumptions in cases involving a natural parent seeking custody from a third party who has provided an established custodial environment. As the trial court noted, M.C.L. Sec. 722.25; M.S.A. Sec. 25.312(5) provides a presumption that the best interest of the child is served by awarding custody to the parent unless the contrary is established by clear and convincing evidence. At the same time, M.C.L. Sec. 722.27(1)(c); M.S.A. Sec. 25.312(7)(1)(c) provides that courts are not to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. Citing Zuziak v. Zuziak, 169 Mich.App. 741, 750-751, 426 N.W.2d 761 (1988), Glover v. McRipley, 159 Mich.App. 130, 146-148, 406 N.W.2d 246 (1987), and Deel v. Deel, 113 Mich.App. 556, 560-562, 317 N.W.2d 685 (1982), the trial court held that the presumptions do not cancel each other, but combine to reduce the burden of proof from clear and convincing to a preponderance of the evidence. Although this Court in Deel decided that the burden is on the third party to rebut the presumption in favor of the natural parent, the trial court in this case relied upon Glover and Zuziak to determine that the burden of persuasion rests with the parent challenging an established custodial environment. The trial court concluded that the evidence overwhelmingly showed that the best interest of the child required that custody be granted to the respondent.

As his first issue on appeal, the petitioner argues that the trial court erred in applying the presumption in favor of an established custodial environment because the presumption applies only to orders that modify an earlier custodial order. Because there was no previous custodial order, he argues, the existence of an established custodial environment was irrelevant. He asserts that the trial court erred in imposing upon him the burden of proving by a preponderance of the evidence that awarding him custody was in the best interest of the child.

In Helms v. Helms, 185 Mich.App. 680, 682, 462 N.W.2d 812 (1990), this Court held that in an original custody action, unlike an action for modification or amendment of previous custody judgments, a circuit court need not reach the question whether an established custodial environment exists. However, in Bowers v. Bowers, 190 Mich.App. 51, 53-54, 475 N.W.2d 394 (1991), another panel of this Court held that a trial court must determine whether an established custodial environment exists when the parties have stipulated to a temporary custody arrangement, because such an arrangement is analogous to a temporary custody order. In this case, we believe that the reasoning of Bowers is applicable in light of the fact that the petitioner's paternity of the child was uncertain at the time she was placed in the...