Who May Gain Custody of a Minor Child

More and more, people are seeking custody of a minor child. This certainly occurs when parents divorce and therefore no longer live together. It can occur when parents were never married and dispute the issue of custody. What is more challenging is when people without a “legal relationship” to a child seek custody of the child. This situation can exist with biological fathers who are not “legal” fathers because they are not on the birth certificate, have no affidavit of parentage, and have no order of filiation from a court. It can also occur when gay or lesbian parents are involved, when stepparents or grandparents are involved, or other people who are not legal parents but love the child(ren).

Perhaps the most notable recent case was that of “Baby Jessica.” This author represented the child’s parents, Dan and Cara Schmidt, who eventually got their daughter back from Robbie and Jan DeBoer, who had tried to adopt her. But there are many other lesser known cases involving this sort of custody battle.

Michigan has several statutes relating to “third party custody disputes,” as they are called, and court decisions as well. In fact, this area of the law has become quite dynamic since the Baby Jessica case.

First of all, a party must have “standing” to petition for custody. This means that the person needs a “real interest in the case.” While the love of a child is a “real interest,” it is not enough under the law. You have to fit into one of the groups set forth by statute. This was discussed in detail in Bowie v. Arder, 441 Mich. 23, 42-43 (1992), and Heltzel v. Heltzel, 248 Mich.App. 1, 31 n. 20 (2001). The courts have held that a third party does not gain “standing” by virtue of the fact that the child has lived with him or her. In fact, in the Baby Jessica case, which was decided as In re Clausen, 442 Mich. 648, 678-682 (1993), the child had lived with the DeBoers her entire life when the case was in the courts.

Michigan’s Child Custody Act confers standing on third parties in two circumstances. First, MCL 722.26b provides that third-party guardians have standing to bring an action for the custody of a child, and limited guardians may also seek custody if and only if the parent has failed to substantially comply with the limited guardianship placement plan. You must have an order from the family court formally appointing you as the child’s guardian or limited guardian to take advantage of this provision.

Second, MCL 722.26c(1)(b) also confers custody if a third party meets all the following conditions:

( i ) The child's biological parents have never been married to one another.

( ii ) The child's parent who has custody of the child dies or is missing and the
other parent has not been granted legal custody under court order.

( iii ) The third person is related to the child within the fifth degree by marriage, b blood, or adoption.

Even if a third party has “standing” to petition for custody, he/she faces a huge burden in prevailing against a fit natural parent. In fact, MCLA 722.25(1) provides:

If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.

There is an exception to this rule for cases where the child was conceived through rape or one of the parents has been convicted of criminal sexual conduct. There is another exception where a parent is deemed by the court to be currently “unfit.” See In re Anjoski, 283 Mich.App. 41 (2009); Hunter v Hunter, 484 Mich. 247 (2009); and Mason v Simmons, 267 Mich.App. 188 (2005). Otherwise, a third party must have “clear and convincing evidence” that an award of custody to him/her serves the child’s best interest.

The best interest “factors” are set forth at MCLA 722.23:

a. The love, affection, and other emotional ties existing between the parties involved and the child.

b. The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

c. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized or permitted under the laws of this state in place of medical care, and other material needs.

d. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

e. The permanence, as a family unit, of the existing or proposed custodial home or homes.

f. The moral fitness of the parties involved.

g. The mental and physical health of the parties involved.

h. The home, school, and community record of the child.

I. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

j. The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

k. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

l. Any other factor considered by the court to be relevant to a particular child custody dispute.

In In re Anjoski, 283 Mich App 41 (2009), a natural father had custody of his child and was living with his new wife when he died. The mother of the child had a history of drug abuse and abusive relationships; however, after the father died, she petitioned the court to have the child transferred to her from the now widowed stepmother. The court denied the petition in the end, but the case was complicated. First of all, the stepmother also petitioned the court for formal/legal custody of the child, but her petition was rejected because she did not have “standing.” Then the court held that the mother was “unfit” and therefore not entitled to the parental preference.

Then, after those rulings, the court held that it still have the power to award the child to the stepmother because once the petition was before the court based on the mother’s court filing, another statute altogether vested the court with the power to consider a placement beyond either parent. In fact, MCLA 722.26(1)(a) provides as follows:

(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:

(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. Subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, the court may also order support as provided in this section for a child after he or she reaches 18 years of age. The court may require that support payments shall be made through the friend of the court, court clerk, or state disbursement unit.

Emphasis supplied. In the Anjoski case, the court held that it served the child’s best interest to remain with the stepmother.

It is imperative that parties have competent counsel in these challenging cases of third party custody. These disputes can be emotionally traumatizing and very expensive, and it is important to be realistic about the legal and factual challenges in a case before it reaches the court.