Ruppel v. Lesner
Decision Date | 01 October 1984 |
Docket Number | Docket No. 72281 |
Citation | 364 N.W.2d 665,421 Mich. 559 |
Parties | Richard O. RUPPEL and Charlotte Ruppel, Plaintiffs-Appellees, v. Rodney P. LESNER and Pamela Lesner, jointly and severally, Defendants-Appellants. , |
Court | Michigan Supreme Court |
Kutinsky, Davey & Solomon, Madison Heights, for plaintiffs-appellees.
Cook & Pringle, P.C., Birmingham, for defendants-appellants.
This appeal presents a custody dispute between a child's parents on the one hand, and her maternal grandparents on the other. The circuit court entered an order giving temporary custody to the grandparents, and the Court of Appeals affirmed.
We conclude that in the circumstances of this case such an award of custody to the grandparents was improper, and reverse.
The child in question, Julie Lesner, was born on June 25, 1969. Her natural mother, defendant Pamela Lesner, was divorced from Julie's natural father, and then married defendant Rodney Lesner, who adopted Julie. Plaintiffs Richard Ruppel and Charlotte Ruppel are the parents of Pamela Lesner.
This action was commenced on May 4, 1981, when the grandparents filed a pleading entitled, "Petition for Visitation", relying on M.C.L. Sec. 722.27(b); M.S.A. Sec. 25.312(7)(b). 1
After the circuit court denied the parents' motions for accelerated judgment 2 and summary judgment 3, a hearing was held on the grandparents' "Petition for Specific Visitation". After taking the testimony of several witnesses, the circuit court entered an order indicating that it was taking the case under advisement for three months, but providing that during that time the grandparents could have visitation. Near the end of the three-month period, the grandparents filed a motion asking for continuation of visitation, and the circuit court entered such an order on August 18, 1982.
The court then made findings as to the statutory standards for determining the best interests of a child 4 and concluded:
"I find that the testimony and those findings that I've made, convince me that despite the presumption that favors custody to the parents, that there's clear and convincing evidence that custody should be changed to grandparents on a temporary basis."
The court noted that the issue of permanent custody remained pending and entered an order granting temporary custody to the grandparents and providing that there should be no visitation with the parents.
The parents filed an application for leave to appeal, which the Court of Appeals granted. However, the Court affirmed the temporary order, remanding the case for a determination of the issue of permanent custody. 127 Mich.App. 567, 339 N.W.2d 49 (1983). The parents have filed a delayed application for leave to appeal to this Court.
The central issue raised by the parents on appeal is their claim that where the parents of a child remain married to each other, where no divorce or separation proceedings have been instituted, and where no finding has been made in an appropriate proceeding of the parents' unfitness, the circuit court may not give custody to a third party.
M.C.L. Sec. 722.25; M.S.A. Sec. 25.312(5) creates a presumption in favor of parental custody in disputes between a parent and a third party:
However, the Court of Appeals concluded that if clear and convincing evidence is presented that a change of custody to a third party is in the best interests of the child, the circuit court may so order without a requirement of a showing of a threshold "unfitness" of the parent, relying on Bahr v. Bahr, 60 Mich.App. 354, 359, 230 N.W.2d 430 (1975):
Further, the Court of Appeals found authority in the statute for the commencement of an action under the Child Custody Act by a third party, relying on Bikos v. Nobliski, 88 Mich.App. 157, 165-166, 276 N.W.2d 541 (1979):
We conclude that where a child is living with its parents, and divorce or separate maintenance proceedings have not been instituted, and there has been no finding of parental unfitness in an appropriate proceeding, the circuit court lacks the authority to enter an order giving custody to a third party over the parents' objection. 5 The Child Custody Act does not create substantive rights of entitlement to custody of a child. Rather, it creates presumptions and standards by which competing claims to the right of custody are to be judged, sets forth procedures to be followed in litigation regarding such claims, and authorizes the forms of relief available in the circuit court. 6 While custody may be awarded to grandparents or other third parties according to the best interests of the child in an appropriate case (typically involving divorce), 7 ] nothing in the Child Custody Act, nor in any other authority of which we are aware, authorizes a nonparent to create a child custody "dispute" by simply filing a complaint in circuit court alleging that giving custody to the third party is in the "best interests of the child". When, as in this case, the third parties are close relatives of the child, we must remember that, except for limited visitation rights 8, grandparents have no greater claim to custody than any other relative, or indeed any other persons. The rule adopted by the Court of Appeals would permit any person to file a circuit court action asking for change of the custody of a child living with parents who were not involved in a divorce or separation procedure. We think it clear that the Legislature contemplated no such result.
In addition, the 1982 amendment of the Child Custody Act 9 further demonstrates that the result reached by the Court of Appeals is not justified by the act. That statute created the right of grandparents to bring an action seeking visitation rights, but only in very limited circumstances:
"(b) Legal custody of the child is given to a party other than the child's parent, or the child is placed outside of and does not reside in the home of a parent, excluding any child who has been placed for adoption with other than a stepparent, or whose adoption by other than a stepparent has been legally finalized." M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b).
In the circumstances of the present case, with no previous custody matter before the court, and with the Ruppels' child Pamela Lesner still living, the Ruppels would have no right to bring an action seeking visitation with Julie Lesner. We do not believe that a statute that would not authorize the grandparents to seek visitation would nonetheless allow them to ask for custody, as they have in this action.
Accordingly, we reverse the judgments of ...
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