Joseph Richard DEMSKI, Plaintiff–Appellee, v. Cassidie Ann PETLICK, f/k/a Cassidie Ann Pointer, and Jeffrey Petlick, Defendant–Appellants.
Defendants appeal by right the February 4, 2014 order of the trial court awarding joint legal custody of the minor child to plaintiff and defendant Cassidie Petlick (“Cassidie”), awarding sole physical custody to Cassidie, and granting parenting time to plaintiff; defendants additionally appeal the August 29, 2013 order of filiation determining plaintiff's paternity of the minor child. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant Jeffrey Petlick (“Jeffrey”) began a romantic relationship with Cassidie, f/k/a Cassidie Pointer, in 2006; that relationship ended in March 2010. Thereafter, Cassidie began a romantic relationship with plaintiff, in April 2010. That relationship lasted approximately 4–1/2 months, during which time plaintiff and Cassidie engaged in sexual relations. Jeffrey and Cassidie did not have sexual relations during the time period of Cassidie's relationship with plaintiff.
In May 2010, Cassidie became pregnant. Plaintiff learned of the pregnancy in June 2010. Plaintiff testified that approximately three or four weeks later, he talked with Cassidie about getting married. In July 2010, while Cassidie was still in a relationship with plaintiff, Jeffrey learned that Cassidie was pregnant. Jeffrey acknowledged at trial that he always knew that the minor child was not his biological child and that plaintiff was the minor child's biological father.
In early August 2010, Cassidie's relationship with plaintiff ended, after which Cassidie and Jeffrey resumed their previous relationship. Plaintiff testified that he offered Cassidie financial and emotional assistance at that time, but that she rejected his help. Cassidie told plaintiff that he had no idea what it took to raise a child and that there was “no way” she was “going to hand her kid over to somebody like [plaintiff].” Plaintiff testified that he felt that Cassidie was pressuring him to back away from the situation.
In September or October 2010, Cassidie went to plaintiff's house to show him ultrasound photographs of the unborn minor child. Jeffrey (who was not present) testified that plaintiff acted as though he did not care to see the photographs and “groped” Cassidie. Cassidie testified that during the first few minutes at plaintiff's house, she discovered that he was “highly under the influence,” and that plaintiff tried to put his hands on her. Plaintiff denied touching or attempting to touch Cassidie when she stopped by his house to show him the photographs.
Jeffrey testified that, in late 2010, plaintiff told him that he wanted to “sign off” in regard to raising the minor child. Plaintiff and Cassidie sent a series of text messages to each other discussing the possibility of plaintiff signing away his rights in exchange for not being required to pay child support. Plaintiff acknowledged that, in November 2010, there was a brief period of time when he did not want to be involved with the minor child. Plaintiff testified that a few weeks later, he changed his mind. Plaintiff testified that he did not seriously consider walking out of the minor child's life, but that Cassidie's initial reluctance to receive his help discouraged him because he did not want the minor child to be raised in an environment with conflict. Jeffrey testified that, by the end of November 2010, he and Cassidie had decided that plaintiff was not going to be involved with the minor child.
Plaintiff obtained legal counsel who sent Cassidie a letter on January 13, 2011 indicating that plaintiff had retained counsel “in order to assist and facilitate his involvement with prenatal doctor's appointments as well as the birth of your daughter” and to assist in establishing paternity “as well as an eventual custody and parenting time arrangement.” The letter also made reference to plaintiff's desire to be present at the birth of the minor child. Cassidie did not contact plaintiff after she received the letter. Cassidie testified that she did not take the letter seriously, because five weeks earlier, plaintiff had told her that he wanted to sign away his rights. Plaintiff testified that at the beginning of January 2011, he saw Jeffrey at a gas station and tried to talk to him. Jeffrey told plaintiff to “stay the f–––away” and that he was a “f piece of s–––.”
On a date later in January 2011, at approximately 2:30 p.m. or 3:00 p.m., Cassidie's water broke. At approximately 5:30 p.m. or 6:00 p.m. the same day, Jeffrey and Cassidie were married. At trial, Jeffrey testified that he and Cassidie had intended to get married on a date in February 2011, but altered this plan when it became apparent that the minor child would be born before that date. Jeffrey testified that they wanted to be married before the minor child was born so that the minor child would be born as a legitimate child into a family with a married mother and father. Cassidie testified that it was important not to have the minor child out of wedlock because she wanted to ensure that the child had a family. At approximately 7:00 p.m. on the date that Jeffrey and Cassidie were married, and while they were waiting for the minor child to be born, plaintiff arrived at the hospital and waited in the waiting room for approximately two or three hours before leaving.
The minor child, MP, was born the next day. On the day after the birth, Cassidie invited plaintiff to the hospital. Jeffrey testified that at that point he and Cassidie had decided that plaintiff could be involved in MP's life. Plaintiff visited MP at that time and held her for four hours. Cassidie testified that while plaintiff was at the hospital, she told him to “[g]ive us a few days, let us get settled and we'll get ahold of you.” According to plaintiff, Cassidie told him when he left the hospital that she would stay in contact with him. Plaintiff asked Cassidie to inform him of how MP's first doctor visit went, but Cassidie did not contact him about the visit.
Within a day or two after MP was born, according to plaintiff, Cassidie and Jeffrey told him via text messages to “back off or further action would be taken.” According to Cassidie, she told plaintiff that “[y]ou're driving us crazy. Give us a few days, let us get settled.” Other than by text messages, Jeffrey and Cassidie did not hear from plaintiff between MP's birth and April or May 2011. Jeffrey and Cassidie testified that after they did not hear from plaintiff, they considered the “door closed” on plaintiff's involvement in MP's life. Plaintiff testified that he was told by Jeffrey and Cassidie that he needed to “back off” or that they would pursue a restraining order or a personal protection order (PPO) against him. Plaintiff said that when he told his attorney of Jeffrey's and Cassidie's threats, his attorney advised him to stay away from them. Jeffrey testified to looking into obtaining a PPO, although it does not appear that one was ever issued.
Later in February 2011, Jeffrey and Cassidie went shopping with MP at Sam's Club. While at the store, MP suffered apnea and stopped breathing. Jeffrey and Cassidie took MP to a series of hospitals for treatment. Jeffrey testified that, as a result of that experience, he solidified his bond with MP.
On June 19, 2011, Jeffrey sent a Facebook message to plaintiff telling him: “Just do us all a favor and go on with your life. We chose the best situation for [MP]. And for you to say I am desperate, you can go f—yourself. Everyone has made mistakes, and the biggest one Cassidie has ever made is with your dumb a—.”
On July 4, 2011, Cassidie and MP went to a festival in Eau Claire, Michigan. Cassidie testified that when she first arrived, plaintiff swerved at her vehicle while he was driving an ATV. Jeffrey (who again was not present) testified that, subsequently, plaintiff came up to Cassidie while she was pushing MP in a stroller and tried to take pictures of MP with his cellular telephone. According to Jeffrey, Cassidie “smacked” plaintiff's hand away. Cassidie testified that plaintiff walked up to her in an aggressive manner and tried to take pictures of MP. Cassidie said that plaintiff appeared to be “under the influence,” and testified that she asked plaintiff several times to stop taking pictures. Plaintiff acknowledged that he tried to take a photograph of MP with his cellular telephone but denied acting in a threatening or aggressive manner toward Cassidie or MP.
After the incident at the festival, Jeffrey called plaintiff on July 4, 2011 and told him to stay away from Cassidie and MP because Cassidie was afraid of plaintiff. Also, Jeffrey told plaintiff that if he went near Cassidie, he would obtain a PPO against plaintiff. On August 2, 2011, Jeffrey sent a text message to plaintiff telling him to “leave us alone.” Jeffrey told plaintiff, “[h]ave you not got the clue we don't like you and we all don't want anything to do with you?” Jeffrey also told plaintiff “[s]he's not your daughter, get it through your dumb a-brain. She'll never see you or come in contact with you. Get over it.” On October 30, 2011, Jeffrey sent another text message to plaintiff telling him that “[y]ou'll never see my daughter. Leave us alone.”
On July 5, 2012, plaintiff filed his complaint in this action. Plaintiff's initial complaint, entitled “Complaint to Determine Parentage, Custody, Child Support, and Parenting Time” sought a declaration that he was MP's father (although it did not cite the statutory basis for such a determination, i.e., the paternity act, MCL 722.711 et seq., or the revocation of paternity act (RPA), MCL 722.1431 et seq.), joint physical and joint legal custody of MP, and a child support determination. Plaintiff alleged that he believed that he was MP's father, that Cassidie was denying his efforts to be involved in MP's life, and that he could provide MP with a stable living environment. Cassidie answered, denying that plaintiff was MP's father, that she had impeded plaintiff's efforts to be involved with MP, and that plaintiff could provide MP with a stable living environment. On September 19, 2012, plaintiff amended his complaint to add Jeffrey as a defendant, alleging that Jeffrey was the “presumed father” of MP. Plaintiff also added to his requests for relief by asking the trial court, in addition to determining paternity, to enter an order of filiation1 naming him MP's legal father.
On December 7, 2012, the parties agreed to cooperate with genetic testing. The results of the paternity test showed that there was a greater than 99.999 percent chance that plaintiff was MP's father. The paternity test results were admitted at trial. The trial court commenced a bench trial on May 24, 2013. The parties testified to the events described above, and further presented testimony regarding the fitness of the parties and MP's best interests. Throughout the trial, and from its inception, the trial court and counsel made repeated reference to the issues at trial encompassing paternity, custody, and parenting time.
Plaintiff testified that he lived in Eau Claire, Michigan with his girlfriend, Lynna Nelson. Nelson and plaintiff had been in a relationship since October 2010, and Nelson had been living with plaintiff for approximately two years. Nelson acknowledged that there was a three or four week period during which she and plaintiff had ended their relationship, but said that they were back together and that their relationship was stronger because of the breakup. Nelson acknowledged that at the time of their breakup, plaintiff said that he would kill himself; however, Nelson believed that plaintiff's threat was not serious. Cassidie testified that during the time she dated plaintiff, he had threatened suicide three or four times.
Plaintiff was a foreman with a company called Ferguson Michigan, in the field of underground construction. Plaintiff made approximately $54,000 in 2012. Plaintiff also testified that he had a room for MP in his home, and that he was willing and able to provide support for MP.
Plaintiff acknowledged that he had smoked marijuana in the past, but said that he had not smoked marijuana during the year before the trial. Plaintiff had a medical marijuana card from May 3, 2011 to June 11, 2013. Plaintiff also grew marijuana for a couple of years before the trial. Plaintiff testified that he quit using marijuana because MP was the most important thing to him. Nelson testified that she and plaintiff had smoked marijuana together in the past, but that it had happened “years ago.” Jeffrey testified that plaintiff had consumed marijuana before driving his truck for work, and that, during the two years before trial, plaintiff used fake urine to pass drug tests at work. Cassidie testified that while she dated plaintiff, she saw him become intoxicated with marijuana and alcohol, and that plaintiff used marijuana every day while Cassidie lived with him. Cassidie testified that plaintiff would become mean and start fights when he was under the influence of marijuana.
Plaintiff said that his efforts to create a positive relationship with Jeffrey and Cassidie had been very negatively received. Plaintiff testified that if the trial court granted him parenting time with MP, he would encourage a relationship between MP and Jeffrey. Nelson testified that plaintiff definitely wanted to be a part of MP's life. Nelson stated that the only negativity that plaintiff demonstrated toward being involved with MP was the result of Cassidie's and Jeffrey's repeated rejections of his involvement.
Cassidie testified that she was concerned with plaintiff's long-term commitment to MP because he had gone back and forth regarding whether he wanted to sign away his rights or be involved with MP. Jeffrey said that he was concerned that MP would suffer emotional harm if plaintiff became a part of her life and then left again. Cassidie said that she did not believe that plaintiff had a genuine desire to be involved in MP's life. Cassidie never heard plaintiff say that he wanted to get to know MP or to love MP, and she believed that plaintiff was only pursuing this case because he wanted to look good in front of his friends and family.
Jeffrey admitted that he had not allowed any relationship to form between plaintiff and MP. Jeffrey testified that he did not believe that plaintiff was fit to be a father and testified that this belief was in part based on his “passing” acquaintance with plaintiff “years ago in Eau Claire” although he did not elaborate further regarding his experience with plaintiff prior to the conception of MP. Jeffrey testified that plaintiff acknowledged at his deposition that he had been charged with assault in 1999. Plaintiff testified that he did not have any criminal convictions in the last three years.
Jeffrey and Cassidie lived with MP in St. Joseph, Michigan. Jeffrey was an independent distributor for Little Debbie Snack Cakes. Jeffrey earned approximately $37,000 to $40,000 per year. Jeffrey testified that he had a great bond with MP, provided care for her, and spent time with her every day. Cassidie testified that both she and Jeffrey worked, and that MP had three babysitters who would watch her on three separate days of the week. Jeffrey's mother testified that MP was very close to Cassidie and Jeffrey.
Regarding MP's best interests, Jeffrey testified that he believed that plaintiff could not offer MP a “second family of love” because MP was happy with Jeffrey and Cassidie. Jeffrey believed that MP would become an emotional “wreck” if she began a relationship with plaintiff because she did not “take kind” to new people and because she suffered “mini panic attacks” in situations where she was scared. Cassidie testified that MP was very scared of strangers and that it took her quite awhile to warm up to people. Cassidie was concerned for MP's emotional well-being if she spent parenting time with plaintiff because she would not feel safe with him. Jeffrey's mother also testified that MP was timid and did not take well to new situations or people, and that she was afraid that MP would be “traumatized” if she was placed into an environment other than Cassidie's and Jeffrey's house. Cassidie testified that she believed that it was in MP's best interests to wait on introducing her to plaintiff until she was older and could understand the situation.
Robin Zollar, a child psychotherapist, was called as an expert witness2 by defendants. She testified that she first met with Cassidie, Jeffrey, and MP approximately three months before trial. Zollar met with Cassidie and Jeffrey individually, and with Cassidie, Jeffrey, and MP as a group. During the time Zollar observed MP with Cassidie and Jeffrey, MP called Cassidie “mommy” and Jeffrey “daddy,” and interacted with Cassidie and Jeffrey equally well. Zollar testified that MP viewed Jeffrey as her father and that MP and Jeffrey seemed to be genuinely comfortable and attached to each other.
Zollar testified that if plaintiff or any other father figure was brought into MP's life, there was a danger that she would suffer frustration and anger because of her young age and inability to understand. Zollar also said that MP could become insecure, threatened, and confused. Zollar testified that the danger to MP was especially great if Cassidie and Jeffrey did not get along with plaintiff, because children the age of MP may believe that the problems of the adults are their fault. Zollar also testified that there was a danger that if a new parental figure was introduced into MP's life, she might become alienated from Jeffrey. However, Zollar also acknowledged that introducing a new parent into MP's life could also benefit her if the parent emotionally supported her for a sustained period of time.
On July 26, 2013, the trial court issued a ruling from the bench. The trial court noted that the issue before it was whether it should determine that MP was born out of wedlock under the RPA, MCL 722.1441, despite the fact that Jeffrey, having been married to Cassidie at the time of MP's birth, was MP's presumed father under MCL 722.1433(4). The trial court recognized that MCL 722.1443(4) allowed it to refuse to determine that a minor child was born out of wedlock, if such a determination would not be in the best interests of the child. After considering MP's best interests, the trial court found by clear and convincing evidence that plaintiff was MP's biological father and that she was born out of wedlock. Based on that finding, the trial court, on August 29, 2013, entered an order of filiation, determining paternity pursuant to MCL 722.1445. The trial court's order also required that plaintiff meet with Zollar for a “concluding evaluation.” The trial court reserved the issues of child custody and parenting time until further order from the trial court.3
On February 4, 2014, the trial court entered an order awarding joint legal custody of MP to Cassidie and plaintiff, awarding sole physical custody to Cassidie, and granting parenting time to plaintiff. On February 18, 2014, Cassidie and Jeffrey moved the trial court for reconsideration on the ground that the trial court had entered a child custody and parenting time order without holding a separate evidentiary hearing and without making specific findings of fact concerning child custody and parenting time. Cassidie and Jeffrey asked the trial court to set aside its February 4, 2014 order and schedule an evidentiary hearing regarding custody and parenting time. In an order dated May 28, 2014, the trial court denied the motion, stating that because it had conducted a trial on May 24, 2013 and June 11, 2013 in regard to plaintiff's complaint, which included claims for child custody and parenting time, it had fulfilled the requirement that an evidentiary hearing be held before the entry of an order regarding custody and parenting time. The trial court had further found that MP had an established custodial environment with Cassidie and had addressed the 12 best-interest factors for child custody under MCL 722.23. The trial court also had found that it was in MP's best interests that Cassidie and plaintiff share joint legal custody, that Cassidie have sole physical custody, and that plaintiff receive parenting time.
This appeal followed.
II. PATERNITY DETERMINATION
Defendants first argue that the trial court erred in entering an order determining paternity and an order of filiation in favor of plaintiff. Specifically, defendants argue that the trial court failed to properly assign the burden of persuasion and erred in its determination of MP's best interests. We disagree.
A. GENERAL PRINCIPLES
The trial court made its determination of paternity pursuant to the RPA, MCL 722.1431 et seq. “Among other things, the Revocation of Paternity Act ‘governs actions to determine that a presumed father is not a child's father․’ “ Grimes v. Van Hook–Williams, 302 Mich.App. 521, 527, 839 N.W.2d 237 (2013), quoting In re Daniels Estate, 301 Mich.App. 450, 458–459, 837 N.W.2d 1 (2013). “The RPA generally provides a court with the authority to determine that a child was born out of wedlock and to make a determination of paternity and enter an order of filiation.” Sprenger v. Bickle, –––Mich. ––––; ––– NW2d –––– (2014) (Docket No. 317822); slip op at 2 (quotation marks and citations omitted). MCL 722.1441 governs actions to determine if a “presumed father” under the RPA is not a child's legal father because the child was born out of wedlock. Parks, 304 Mich.App. at 238, 850 N.W.2d 595. The biological father of a child born out of wedlock may then establish paternity pursuant to MCL 722.717(1).4 A “presumed father” is a “man who is presumed to be the child's father by virtue of his marriage to the child's mother at the time of the child's conception or birth .” MCL 722.1433(4). In this case, Jeffrey was married to Cassidie at the time MP was born, and was therefore a presumed father under MCL 722.1433(4).
MCL 722.1441(3) provides in relevant part:
If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child's paternity if an action is filed by an alleged father and any of the following applies:
* * *
(c) Both of the following apply:
(i ) The mother was not married at the time of conception.
(ii ) The action is filed within 3 years after the child's birth. The requirement that an action be filed within 3 years after the child's birth does not apply to an action filed on or before 1 year after the effective date of this act.
In this case, the record showed that Cassidie was not married at the time she conceived MP, and that this action was filed both within three years of MP's birth and within one year of the effective date of the RPA. Accordingly, the elements of MCL 722.1441(3)(c) were met in this case. The parties do not dispute this on appeal. However, MCL 722.1441(3) indicates that the trial court “may” determine that the child is born out of wedlock where the elements are met; it does not state that such action is mandatory. See Walters v. Nadell, 481 Mich. 377, 383, 751 N.W.2d 431 (2008) (the use of the word “may” indicates discretionary action). This Court has previously held that, “even if the requirements of MCL 722.1441(1)(a) are met, the trial court may, of course, refuse to make such a determination “if the court finds evidence that the order would not be in the best interests of the child.” Glaubius v. Glaubius, 306 Mich.App. 157, 173 n. 4, 855 N.W.2d 221 (2014), lv gtd ––– Mich. –––– (2014). (quotation marks and citation omitted).
MCL 722.1443(4) provides:
A court may refuse to enter an order setting aside a paternity determination or determining that a child is born out of wedlock if the court finds evidence that the order would not be in the best interests of the child. The court shall state its reasons for refusing to enter an order on the record. The court may consider the following factors:
(a) Whether the presumed father is estopped from denying parentage because of his conduct.
(b) The length of time the presumed father was on notice that he might not be the child's father.
(c) The facts surrounding the presumed father's discovery that he might not be the child's father.
(d) The nature of the relationship between the child and the presumed or alleged father.
(e) The age of the child.
(f) The harm that may result to the child.
(g) Other factors that may affect the equities arising from the disruption of the father-child relationship.
(h) Any other factor that the court determines appropriate to consider.
Thus, a court may properly decline to rule that a child was born out of wedlock where the court finds under MCL 722.1443(4) that such a ruling would not be in the child's best interests. See Glaubius, 306 Mich.App. at 173 n. 4, 855 N.W.2d 221.
B. BURDEN OF PERSUASION/LEGAL STANDARD
Defendants first argue that the trial court failed to assign the burden of persuasion to plaintiff. Further, they argue that plaintiff's burden, as articulated in Helton v. Beaman, 304 Mich.App. 97, 850 N.W.2d 515, lv gtd 497 Mich. 865, 853 N.W.2d 96 (2014), was to demonstrate by clear and convincing evidence that a change in custodial environment was in the child's best interests, and that the trial court failed to apply that legal standard. We review de novo issues related to the interpretation and application of the RPA, such as the applicable evidentiary standard. Parks v. Parks, 304 Mich.App. 232, 237, 850 N.W.2d 595 (2014). Although the parties argued below the issue of what legal standard should apply, defendants never raised before the trial court the issue of the assignment of the burden of persuasion; that issue is thus unpreserved. Polkton Charter Twp. v. Pellegrom, 265 Mich.App. 88, 95, 693 N.W.2d 170 (2005). We review unpreserved issues for plain error. Kern v. Blethen–Coluni, 240 Mich.App. 333, 336, 612 N.W.2d 838 (2000). “To avoid forfeiture under the plain error rule, three requirements must be met: (1) the error must have occurred, (2) the error was plain, i .e., clear or obvious, (3) and the plain error affected substantial rights.” Id., quoting People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999).
In presenting this argument, defendants blend and thus confuse two distinct issues: (1) whether the trial court properly assigned the burden of persuasion; and (2) whether the trial court applied the correct legal standard in determining whether that burden had been satisfied. As to the former, defendants identify no evidence or statement of the trial court supporting their assertion that the trial court failed to assign the burden of persuasion to plaintiff. Although the record reflects that the trial court did not specifically indicate which party bore the burden of persuasion, the plaintiff in a civil case bears the burden of persuasion throughout the course of a case. Reed, 475 Mich. at 548, 718 N.W.2d 770; Triple E. Produce Corp., 209 Mich.App. at 175–176, 530 N.W.2d 772. “A trial judge is presumed to know the law.” Auto–Owners Ins. Co. v. Keizer–Morris, Inc., 284 Mich.App. 610, 612, 773 N.W.2d 267 (2009). We therefore presume, absent evidence to the contrary (which defendants have not provided), that the trial court assigned the burden of persuasion to plaintiff. Defendants' argument in that respect accordingly fails.
Defendants further argue that the trial court failed to apply the proper legal standard in determining whether plaintiff had satisfied his burden of persuasion, and that it should have applied the standard articulated in Helton. In Helton, the plaintiff brought an action under the RPA seeking to revoke the defendants' acknowledgment of parentage regarding a child the defendants had raised from birth. Helton, 304 Mich.App. at 99, 850 N.W.2d 515 (O'Connell, J., lead opinion). The trial court in Helton denied the plaintiff's request to revoke the acknowledgment of parentage based on its application of the best-interest factors set forth in MCL 722 .1443(4). Helton, 304 Mich.App. at 102, 850 N.W.2d 515 (O'Connell, J., lead opinion). The lead opinion in Helton concluded as follows regarding the legal standard applicable in the matter before it:
Second, with regard to the applicable burden of persuasion, the Revocation of Paternity Act places Helton (as biological father) and Douglas (as acknowledged father) in equivalent litigation postures. See MCL 722.1437(3). Accordingly, it is appropriate to use the burden of persuasion applicable to disputes between parents, which results in a presumption in favor of maintaining the child's established custodial environment. See [In re AP, 283 Mich.App. 574, 600–601, 770 N.W.2d 403 (2009).]
In this case, the child has an established custodial environment with defendants. To alter the established custodial environment, Helton would have to present clear and convincing evidence that a change in the custodial environment is in the child's best interests under MCL 722.23. [Helton, 304 Mich.App. at 112–113, 850 N.W.2d 515 (O'connell, J., lead opinion).]
On appeal, defendants argue that the above standard should apply to the trial court's determination of paternity in the instant case, requiring plaintiff, as the person challenging an established custodial environment, to present clear and convincing evidence that a change is in MP's best interests. Accordingly, they argue that the trial court erred when it did not require plaintiff to prove by clear and convincing evidence that a change in MP's custodial environment was in her best interest.
We first note that defendants acknowledge that the trial court, in making its custody determinations in this case, in fact applied the very standard for which defendants advocate. Defendants' argument instead appears to be that the trial court should have applied that standard earlier, in the context of its initial paternity determination. Defendants base their argument on Helton 's application of the legal standards controlling a change in custody under the child custody act. Helton, 304 Mich.App. at 111–112, 850 N.W.2d 515 (O'Connell, J., lead opinion), citing In re AP, 283 Mich.App. at 600–602, 770 N.W.2d 403.
We find defendants' position difficult to grasp, given that the trial court applied precisely the standard that defendants favor. Even assuming, however, that defendants' position is premised on a distinction with a difference, we find it unpersuasive.
First, Helton is not binding on this Court. The lead opinion was only signed by a single judge. Helton, 304 Mich.App. at 102, 850 N.W.2d 515 (O'connell, J., lead opinion). A second judge on the Helton panel disagreed with the lead opinion's application of child custody law and merely concurred with its affirmation of the trial court. Helton, 304 Mich.App. at 114–115, 850 N.W.2d 515 (K.F. Kelly, J., concurring opinion). A third judge on the panel dissented. Helton, 304 Mich.App. at 129, 850 N.W.2d 515 (Sawyer, J., dissenting opinion). See Burns v. Olde Disc Corp., 212 Mich.App. 576, 582, 538 N.W.2d 686 (1995) (holding that “a plurality decision in which no majority of the participating justices agree concerning the reasoning is not binding authority under the doctrine of stare decisis”).
Second, the lead opinion in Helton looked for guidance in the child custody standards because this Court had held in In re Moiles, 303 Mich.App. 59, 840 N.W.2d 790 (2013), rev'd in part 495 Mich. 944, 945, 843 N.W.2d 220 (2014), that a trial court is not required to make a best-interest determination under MCL 722.1443(4) when revoking an acknowledgement of parentage. Helton, 304 Mich.App. at 106–107, 850 N.W.2d 515. Because it was bound by Moiles,5 and because it therefore was obliged to conclude that the trial court had mistakenly applied the best-interest factors in MCL 722.1443(4) in denying the plaintiff's request to revoke an acknowledgement of parentage, the lead opinion looked to the standards applicable to a change in custody under the child custody act.
In this case, by contrast, it is undisputed that the best-interest factors in MCL 722.1443(4) do apply. By its express terms, that provision applies to a trial court's “determin[ation] that a child is born out of wedlock.”6 Id. Consequently, unlike as was arguably the case in Helton in the context of a revocation of acknowledgement of parentage, there was no need to look beyond the statutory provision itself for the applicable legal standard. Helton is therefore inapplicable.
Finally, the trial court indicated that it had applied a clear and convincing evidentiary standard when it reached its determination regarding the best interests of the child under MCL 722.1443(4). We note that this provision does not expressly articulate a “clear and convincing” evidentiary standard. Id. However, assuming that the “clear and convincing evidence” standard applies, as it was applied in Helton under the child custody act, that indeed was the standard that the trial court applied in this case. Consequently, defendants can claim no error in the trial court's application of the “clear and convincing” evidentiary standard.7
For all of these reasons, defendants' argument that the trial court's decision should be reversed for failure to properly assign the burden of persuasion, and to apply the proper legal standard, lacks merit.
C. BEST–INTEREST DETERMINATION
Defendants also argue that the trial court erred in failing to find that a determination that MP was born out of wedlock would not be in her best interests under the best-interest factors set forth in MCL 722.1443(4). We disagree. We review a trial court's factual findings in proceedings under the RPA for clear error. Parks, 304 Mich.App. at 237, 850 N.W.2d 595. “The trial court has committed clear error when this Court is definitely and firmly convinced that it made a mistake.” Id. (citation omitted).
The trial court addressed the best interests of MP under MCL 722.1443(4) to determine whether it should determine that MP was born out of wedlock, which was proper. Glaubius, 306 Mich.App. at 173 n. 4, 855 N.W.2d 221. MCL 722.1443(4) broadly8 identifies the above-quoted eight factors that a trial court may consider. Id. Defendants argue the trial court erred in failing to address factor (a) (whether the presumed father is estopped from denying parentage because of his conduct), factor (b) (the length of time the presumed father was on notice that he might not be the child's father), and factor (c) (the facts surrounding the presumed father's discovery that he might not be the child's father), and further erred in its application of the remaining factors.
Regarding factors (a), (b), and (c), the record reflects that defendants' counsel stated at the bench trial as follows regarding the best-interest factors:
In this case, I believe there's more than an abundance of evidence to support the Court refusing to set aside or refusing to grant the relief request essentially, Judge. The Court really needs to simply dive into the several factors that are laid out: (a) through (h). And a few of those factors, as we often find, Your Honor, don't apply. The focus of my discussion will relate to factors (d), (e), (g), (g), [sic] and (h).
Defendants' counsel went on to address the best-interest factors before the trial court, but did not address factors (a), (b), and (c). Having failed to address these factors before the trial court, we could find that defendants have waived appellate review of the trial court's failure to consider those factors. See Holmes v. Holmes, 281 Mich.App. 575, 587–588, 760 N.W.2d 300 (2008) (“A party may not take a position in the trial court and subsequently seek redress in an appellate court that is based on a position contrary to that taken in the trial court. [And, a] party cannot stipulate a matter and then argue on appeal that the resultant action was error.”) (citations omitted). However, even if we were to consider the issue, we find defendants' position unpersuasive.
A trial court has discretion regarding which factors to consider. MCL 722.1443(4) states, “[t]he court may consider ․” (emphasis added). The word “may” indicates discretionary action, not mandatory. Walters, 481 Mich. at 383, 751 N.W.2d 431. Defendants concede on appeal that factor (a) is inapplicable. Regarding factor (b), defendants note that Jeffrey knew for six months before the birth that he was not MP's father; regarding factor (c), defendants point out that Jeffrey discovered that he was not MP's father through a discussion with Cassidie before resuming their relationship six months before the birth. Defendants contend that factors (b) and (c) thus favor Jeffrey.
Factors (b) and (c) have not been addressed in our case law. Defendants argue that the fact that Jeffrey was at all times aware that MP was not his child weighs in favor of them because of Jeffrey's willingness to raise a child that was not his biological offspring. Plaintiff argues that this fact instead weighs in favor of plaintiff because the presumed father was not “surprised” by discovering that MP was not his biological offspring after raising MP for a period of time. Both positions have some merit. On balance, under the facts of this case, where it was clear that all parties were aware that plaintiff was the biological father of MP and that discussion regarding his involvement in MP's life began before her birth and continued almost immediately after her birth, we find that the factors do not clearly favor one party or another, and that the trial court did not clearly err in failing to sua sponte consider these factors.
Defendants further contend that the trial court erred in its application of the remaining factors set forth in MCL 722.1443(4). We disagree.
Regarding factor (d) (the nature of the relationship between the child and the presumed or alleged father), the trial court held that it “is un-refuted [sic] that Jeffrey Petlick and [MP] have a strong father/daughter bond of reciprocal love evidenced by tender and affectionate interaction. There is no determined or established relationship between the minor child and the alleged father.” The trial court did not specifically indicate the weight it gave to this factor. However it appears clear from context that the trial court found that this factor to weigh against a “born out of wedlock” determination; the court's findings regarding this factor were not clearly erroneous. Parks, 304 Mich.App. at 237, 850 N.W.2d 595.
Regarding factor (e) (the age of the child) the trial court merely stated that MP was almost 2–1/2 years old, and did not find that the factor weighed one way or another. Defendants argue, however, that this factor weighs against a “born out of wedlock” determination because MP was healthy and progressed well while in Jeffrey's care and considered Jeffrey to be her father. But MP's health and bond with Jeffrey were addressed in other factors. Defendants have not demonstrated clear error in the trial court's decision to limit its analysis under factor (e) to the statement of the minor child's age. Id.
Regarding factor (f) (the harm that may result to the child), the trial court stated in its order following defendants' motion for reconsideration:
The court determined the most reliable testimony relative to determining harm was that of the expert witness, counselor Robin Zollar. Ms. Zollar, a determined expert in child development assessment and therapy, opined following her interview and assessment of Defendant(s) and observations of the minor that [MP] appeared to be okay in non-threatening situation [sic], suggesting that Plaintiff Joseph Demski be introduced to [MP] merely as an individual and not as a parent. Ms. Zollars [sic] concern for harm to the minor centered around the mminors [sic] possible confusion if faced with the potential of having two dads. Defendant Jeffrey Petlick's declarations of potential harm to the minor appear unreasonable and were weighed accordingly. Mr. Petlick testified, “He [Demski] is not fit to be a parent: I interacted with him years ago at a party in Eau Claire, we have some mutual friends and any contact for [MP] with Plaintiff even in a supervised setting would be harmful, on a scale of 1–10 a 20.
Robin Zollar conducted 3 sessions, meeting once each with Defendant's [sic] individually, and a joint session including the minor providing [sic] opportunity to observe minors [sic] interactions with Defendants [sic] She confirmed that the minor is initially reticent around new people but okay in a non-threatening situation.
Ms. Zollar's responses to questioning related directly to the ‘[sic] harm” factor addressed less the issue of introduction of Plaintiff's interaction with the minor, but rather the question of how that introduction was to be handled and what would be the adult expectations placed upon the minor. These were however factors she was not afforded the opportunity to ask the Plaintiff, but would have desired to do so as a part of her assessment. The court ordered Plaintiff's participation with an interview with the counselor providing her the requisite opportunity for completion of her assessment and submission of her report with recommendations relative Custody and Parenting time. The court upon consideration of her report and recommendation then fashioned the order from which Defendants seek reconsideration. [Emphasis in original.]
Defendants argue that the trial court erred in failing to find that MP would be harmed by plaintiff's introduction into her life because he had no experience raising children and Jeffrey was better able to help MP develop. Zollar's expert testimony supported both a conclusion that MP could be harmed by plaintiff's introduction into her life and also that his introduction could benefit her. We are not definitely and firmly convinced that the trial court erred in relying on the portion of Zollar's testimony that indicated that MP could benefit from introducing plaintiff into her life, or by finding portions of Jeffrey's testimony incredible. We therefore find that the trial court did not commit clear error in regard to factor (f). Id.
Regarding factor (g) (other factors that may affect the equities arising from the disruption of the father-child relationship), the trial court found as follows:
The court identified potential affected equities arising from any disruption of the father-child relationship. Emotional, physical and financial were identified. The Defendants testified that they are committed to each other and each to [MP] whether or not Plaintiff Joseph Demski is determined the legal father. Mr. Petlick affirmed that because of his bond of love for [MP] he will continue his emotional and financial support of her and provide the protections she requires. The established father-child relationship existing between [MP] and Jeffery [sic] Petlick does not presently appear at any significant risk of disruption.
On appeal, Cassidie and Jeffrey argue that the trial court erred when it found that “[t]he established father-child relationship existing between [MP] and Jeffery [sic] Petlick does not presently appear at any significant risk of disruption.” Defendants argue that the trial court's subsequent order of filiation severed Jeffrey's relationship with MP and destroyed the father-daughter relationship they possessed. However, Jeffrey testified that a strong bond existed between him and MP; when asked to rate his bond with MP, Jeffrey said that “[t]here isn't a number that high.” Accordingly, the trial court did not clearly err in accepting Jeffrey's testimony as to the strength of the bond and concluding that the relationship was not at risk of disruption. Id.
Finally, in regard to factor (h) (any other factor that the court determines appropriate to consider), the trial court stated:
The court noted the uniqueness of the factual scenario of a the [sic] mother's marriage to the presumed father occurring at the hospital, after the mother's water breaks; unbeknownst to the alleged father who appears to have demonstrated his interest in the child by arrival at the hospital following inadvertent notice of these events—arriving post-nuptials but prior to the birth of the child. From the totality of the testimony in the light most favorable to the Defendants the court was persuaded that Defendants [sic] actions were purposeful in an effort to preclude the Plaintiff of any legal opportunity of parentage for [the minor child].
Although defendants argue that the trial court improperly focused on their conduct and not MP, we conclude that, while the trial court's findings were related to Cassidie's and Jeffrey's actions, the consequences of their actions related to the relationship between plaintiff and MP and were appropriate for the trial court to consider. The trial court did not clearly err in its consideration of this factor. Id.
In sum, the trial court found under factor (d) that there was a strong bond of love between Jeffrey and MP, and found under factor (g) that there was not a significant risk of disruption of Jeffrey's relationship with MP if plaintiff was granted parenting time. The trial court also properly relied on Zollar's testimony that MP could benefit from the introduction of plaintiff into her life when it addressed factor (f). The trial court's findings do not leave us with a definite and firm conviction that a mistake was made. Id. Therefore, we hold that the trial court did not clearly err in declining to conclude that an order determining that MP was born out of wedlock would not be in her best interests. Id.
III. CUSTODY AND PARENTING TIME
Defendants next argue that the trial court erred in concluding it had the authority to enter an order determining custody and parenting time, and, if in fact the trial court had such authority, erred in failing to hold an evidentiary hearing regarding child custody and parenting time. Defendants also argue that the trial court's custody and parenting time orders should be reversed because they are not in the best interests of MP. We disagree.
A. TRIAL COURT'S AUTHORITY TO ENTER CUSTODY AND PARENTING TIME ORDERS
Defendants first argue the trial court erred in granting plaintiff joint legal custody of, and parenting time with, MP pursuant to MCL 722.1445. Defendants contend that MCL 722.1445 and MCL 722.717 (which MCL 722.1445 incorporates by reference) do not make any reference to child custody or parenting time orders. Defendants did not raise this issue before the trial court. This issue is thus unpreserved and reviewed for plain error. Polkton Charter Twp., 265 Mich.App. at 95, 693 N.W.2d 170.
In support of their claim that the trial court relied on MCL 722.1445 for its authority to issue child custody and parenting time orders, defendants quote the following portion of the trial court's ruling that it made on the record on July 26, 2013:
With that, an order ․ consistent with [sic] directive of MCL 722.1445 in terms of the [de]termination of paternity; again, by clear and convincing evidence that your client is indeed the biological father and the Court having made specific findings relative to the other factors of the new act, consistent with MCL 722.717 Section 7, an order for paternity would enter. As a part of the entry of an order for paternity the Court can consider and certainly enter orders related to parenting time, custody, and support.
Defendants argue that this statement suggests that “the trial court believes it has the authority to grant relief outside the Revocation of Paternity Act because MCL 722.1445 allows the court to enter an order of filiation under the Paternity Act.”
The trial court's February 4, 2014 order stated as follows:
Pursuant [sic] MCL 722.717 and prior order of the court, an Order of Filiation to issue, the court having determined Joseph Richard Demski to be the father of the minor [child] pursuant [sic] MCL 722.1441 sec. 11(3) and Joseph Richard Demski having acknowledged in open court paternity of the minor child,
The Court enters an order awarding the parties joint legal custody, physical custody awarded to the mother, Defendant Cassadie [sic] Petlick, parenting time awarded the Plaintiff father, under the supervision of the Friend of the Court with a goal of achieving reasonable rights of parenting time.
Defendants are correct that neither MCL 722.717 nor MCL 722.1445 explicitly provide a trial court with the authority to enter child custody or parenting time orders in conjunction with the entry of an order of filiation. However, the child custody act “governs child custody disputes between parents, agencies or third parties.” Mauro v. Mauro, 196 Mich.App. 1, 4, 492 N.W.2d 758 (1992). A trial court's authority in a child custody dispute is governed by MCL 722.27(1). See Kessler v. Kessler, 295 Mich.App. 54, 60, 811 N.W.2d 39 (2011). MCL 722.27(1) provides, in relevant part:
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 [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.
(b) Provide for reasonable parenting time of the child by the parties involved, by the maternal or paternal grandparents, or by others, by general or specific terms and conditions. Parenting time of the child by the parents is governed by [MCL 722.27a]. [Emphasis added.]
In this case, plaintiff filed a complaint asking the trial court to decree that he was the minor child's father, grant him joint physical and legal custody of the minor child, and establish child support and parenting time of the minor child. Plaintiff thus submitted a child custody dispute to the trial court as part of his original action. Once the trial court made a determination of paternity, it had authority under MCL 722.27(1) to enter orders regarding child custody and parenting time. See Kessler, 295 Mich.App. at 60, 811 N.W.2d 39.9 Regardless of whether the trial court believed that it had the authority to address the custody of the minor child and parenting time under MCL 722.1445, this Court will affirm where the trial court reaches the right result for the wrong reason. Taylor, 241 Mich.App. at 458, 616 N.W.2d 229. Here, the trial court properly addressed the issues of child custody and parenting time pursuant to MCL 722.27(1), and no reversal is required. Id. Defendants have not demonstrated plain error. Kern, 240 Mich.App. at 336, 612 N.W.2d 838.
B. FAILURE TO HOLD AN EVIDENTIARY HEARING
Defendants next argue that the trial court was required to hold an evidentiary hearing before it addressed child custody and parenting time. Defendants did not raise this issue before the trial court initially. Although they raised this issue in their motion for reconsideration, “[w]here an issue is first presented in a motion for reconsideration, it is not properly preserved.” Vushaj v. Farm Bureau Gen. Ins. Co. of Mich., 284 Mich.App. 513, 519, 773 N.W.2d 758 (2009). We therefore review this issue for plain error. Kern, 240 Mich.App. at 336, 612 N.W.2d 838.10
Defendants refer this Court to Schlender v. Schlender, 235 Mich.App. 230, 596 N.W.2d 643 (1999), in support of their position. In Schlender, the defendant filed a motion for change of custody that included a “rather lengthy” offer of proof as required by the trial court's administrative policy. Id. at 231, 596 N.W.2d 643. Subsequently the trial court “indicated that it had read defendant's motion and did not require further argument from defendant. Plaintiff presented argument and defendant was permitted to respond.” Id. at 231–232, 596 N.W.2d 643. The trial court denied the defendant's motion, finding no “good reason” for a change of custody. Id.
The defendant appealed, arguing that he was entitled to an evidentiary hearing regarding his change of custody motion and that, therefore, the administrative policy requiring him to present an offer of proof instead of witness testimony was invalid. Id. at 232, 596 N.W.2d 643. This Court reversed the trial court, holding that a “petitioner in a custody matter cannot be deprived by local court rule of an evidentiary hearing.” Id. at 233, 596 N.W.2d 643. In so holding, this Court in Schlender reiterated that “it is improper for a trial judge to decide the issue of custody on the pleadings and the report of the friend of the court when no evidentiary hearing was held.” Id. at 233, 596 N.W.2d 643, citing Stringer v. Vincent, 161 Mich.App. 429, 432, 411 N.W.2d 474 (1987). This Court noted that MCR 3.210(C) recognized the “right to a hearing in custody cases.” Schlender, 235 Mich.App. at 233, 596 N.W.2d 643; see also Sprenger, ––– Mich.App at ––––, slip op at 6 n. 5 (noting that a child custody dispute requires an evidentiary hearing when “contested factual issues exist that must be resolved to make an informed decision.”).
In this case, the trial court held a bench trial regarding the issues raised in plaintiff's complaint. The trial featured seven witnesses providing several hundred pages worth of testimony and dozens of exhibits presented by the parties. On February 4, 2014, the trial court entered an order determining child custody and parenting time. In denying defendants' motion for reconsideration, the trial court stated that it had fulfilled the requirement that an evidentiary hearing be held before the entry of an order regarding custody and parenting time.
We agree with the trial court. This case is fundamentally different from Schlender, as it was not decided on the pleadings alone. As discussed above, plaintiff's complaint in part presented a child custody dispute, and upon making a determination of paternity, the trial court had authority under the child custody act to enter orders regarding child custody and parenting time. See Kessler, 295 Mich.App. at 60, 811 N.W.2d 39. Further, as discussed below, the evidence introduced during the bench trial was applicable to determining child custody and parenting time under the child custody act. MCL 722.27(1). Thus, the premise of defendants' argument, that the bench trial only concerned issues under the RPA and was thus insufficient to fulfill the requirement that an evidentiary hearing be held to determine child custody, is not supported by the record. Defendants fail to show plain error under Schlender. Kern, 240 Mich.App. at 336, 612 N.W.2d 838.
C. BEST–INTEREST DETERMINATION
Defendants also argue that the trial court's custody and parenting time orders should be reversed because its findings regarding the best-interest factors (expressed in its order denying defendants motion for reconsideration on May 28, 2014) were inaccurate and neglect some of the important aspects of a best-interest analysis, and because the trial court erred when it considered the factors relevant to parenting time. All orders and judgments of the circuit court regarding child custody and parenting time are to be affirmed unless the trial court made findings of fact against the great weight of the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. MCL 722.28; Pickering v. Pickering, 268 Mich.App. 1, 5, 706 N.W.2d 835 (2005). “Under this standard, a reviewing court should not substitute its judgment on questions of fact unless the factual determination ‘clearly preponderate[s] in the opposite direction.’ “ Pierron v. Pierron, 486 Mich. 81, 85, 782 N.W.2d 480 (2010), quoting Fletcher v. Fletcher, 447 Mich. 871, 879, 526 N.W.2d 889 (1994). In reviewing factual findings, this Court defers to the trial court's determination of credibility. Shann v. Shann, 293 Mich.App. 302, 305, 809 N.W.2d 435 (2011).
The trial court's discretionary rulings, such as to whom to award custody, are reviewed for an abuse of discretion. An abuse of discretion exists when the trial court's decision is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. [Berger v. Berger, 277 Mich.App. 700, 705, 747 N.W.2d 336 (2008) (citation omitted).]
“Whether an established custodial environment exists is a question of fact that the trial court must address before it makes a determination regarding” child custody. Mogle v. Scriver, 241 Mich.App. 192, 197, 614 N.W.2d 696 (2000). Additionally, a determination regarding the existence of an established custodial environment must be made when addressing parenting time. Pierron, 486 Mich. at 86, 782 N.W.2d 480. A custodial environment is established if
over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [MCL 722.27(1)(c).]
[a]n established custodial environment is one of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child. It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and permanence. [Berger, 277 Mich.App. at 706, 747 N.W.2d 336.]
“An established custodial environment may exist with both parents where a child looks to both the mother and the father for guidance, discipline, the necessities of life, and parental comfort.” Id. at 707, 782 N.W.2d 480. “[W]hen a modification of custody would change the established custodial environment of a child, the moving party must show by clear and convincing evidence that it is in the child's best interest.” Phillips v. Jordan, 241 Mich.App. 17, 25, 614 N.W.2d 183 (2000).
“[C]ustody disputes are to be resolved in the child's best interests” and “[g]enerally, a trial court determines the best interests of the child by weighing the twelve statutory factors outlined in [MCL 722.23].” Eldred v. Ziny, 246 Mich.App. 142, 150, 631 N.W.2d 748 (2001). Those factors are:
(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 and 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. [MCL 722.23.]
In this case, the trial court found that MP had an established custodial environment with Cassidie and placed the burden on plaintiff to show by clear and convincing evidence that a change was in MP's best interests. The trial court then addressed the best-interest factors of MCL 722.23. Defendants challenge the trial court's findings with respect to all factors apart from factor (a) (the love, affection, and other emotional ties existing between the parties involved and the child), which the trial court found favored Cassidie.
Regarding factor (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), the trial court found that both plaintiff and Cassidie had demonstrated the capacity and disposition to give MP love, affection, and guidance and to continue the education and raising of MP in his or her religion or creed, and thus that this factor was equal. Defendants argue that the trial court erred by failing to consider that Cassidie in fact currently cared for MP, and because plaintiff had at one point expressed a desire to relinquish his rights to MP. However, this factor deals with the capacity and disposition of the parties, not whether each party has in fact had the opportunity to demonstrate that capacity and disposition. The trial court's finding that plaintiff demonstrated such a capacity and disposition through his attempts to obtain parenting rights to MP, despite having held her for only a few hours after her birth, was not against the great weight of the evidence. MCL 722.28.
Regarding factor (c) (capacity and disposition of the parties involved to provide the child with food, clothing, medical care, other remedial care, and other material needs), the trial court found that both parties were gainfully employed and possessed more than adequate means to support MP, and noted that plaintiff was currently providing child support pursuant to a court order.11 Defendants argue that plaintiff lacks the knowledge or ability to care for MP's apnea. However, they provided no factual support for that assertion. The trial court's finding that this factor weighed equally was not against the great weight of the evidence. Id.
Regarding factor (d) (the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity), the trial court found that it had no concerns related to Cassidie's home environment, and further found that plaintiff's testimony that he was no longer using medical marijuana and would ensure MP's safety around his dog was credible. The trial court found that this factor weighed equally. Factor (d) is properly addressed by considering the environments the children have lived in the past and the desirability of maintaining the continuity of those environments. See Berger, 277 Mich.App. at 709, 747 N.W.2d 336. The trial court did not address the desirability of maintaining MP's continuity with Cassidie, but rather the appropriateness of plaintiff's future environment for MP. Accordingly, we hold that this finding was based on clear legal error and should have favored Cassidie. MCL 722.28; Pickering, 268 Mich.App. at 5, 706 N.W.2d 835.
Regarding factor (e) (the permanence, as a family unit, of the existing or proposed custodial home or homes), the trial court held that neither parent had indicated that the family unit was likely to change. Plaintiff testified that he had lived with Nelson for approximately two years. Although Nelson testified that she at one point had taken “a step back” from her relationship with plaintiff to assess her commitment to the relationship, she testified that the relationship was stronger for her having done so. Defendants had been married approximately two and one half years. The trial court found that this factor weighed equally. Although defendants argue that the trial court erred in failing to favor Cassidie's married relationship over plaintiff's unmarried one, the trial court did not clearly err in focusing on the permanence or stability of the family environments offered by each parent rather than engaging in “an evaluation about whether one custodial home would be more acceptable than the other.” See Ireland v. Smith, 451 Mich. 457, 464–465, 547 N.W.2d 686 (1996) (citation omitted). The trial court's finding under this factor is not against the great weight of the evidence or the product of clear legal error. MCL 722.28; Pickering, 268 Mich.App. at 5, 706 N.W.2d 835.
Regarding factor (f) (the moral fitness of the parties involved), the trial court found no significant issues, stating “The Plaintiff and Defendant mother shared a past incorporating the good, bad and ugly and is non-determinative for either of them relating to their potential for future parenting of [MP].” Defendants argue that plaintiff's poor moral fitness was shown by his past use of marijuana, his unwelcomed sexual advances toward Cassidie, and his act of accosting Cassidie at the festival. However, our Supreme Court has stated that “questionable conduct is relevant to factor [ (f) ] only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent.” Fletcher, 447 Mich. at 887, 526 N.W.2d 889. Plaintiff testified that he had smoked marijuana in the past, but had ceased because MP was the most important thing to him. No evidence was presented that plaintiff presently used marijuana or planned on doing so in the future. Thus, there was no evidence that plaintiff's past marijuana use would affect his ability to function as a parent. Fletcher, 447 Mich. at 887, 526 N.W.2d 889. Regarding the alleged instances at Cassidie's home and the festival, plaintiff disputed defendants' allegations against him. Even if the trial court credited defendants' versions of both events (as discussed in factor (k) below, it appears the trial court did not in fact credit their testimony regarding these events), there is no evidence that these incidents would influence how plaintiff would function as a parent. Id. The trial court's finding that factor (f) weighed equally was not against the great weight of the evidence or the product of clear legal error. MCL 722 .28; Pickering, 268 Mich.App. at 5, 706 N.W.2d 835.
Regarding factor (g) (the mental and physical health of the parties involved), the trial court found the factor to weigh equally. The trial court acknowledged plaintiff's past statements regarding suicide but noted that no evidence was presented that either parent suffered from current mental or physical health issues. Defendants argue that the trial court erred because plaintiff's past possession of a medical marijuana card suggested that he suffered from serious pain. The record indicates that plaintiff's medical marijuana card expired on June 11, 2013 and that plaintiff had no plans to renew the card. Thus, even assuming that the mere presence of a medical marijuana card indicated unfitness under factor (g), there was no evidence that plaintiff would suffer from serious pain or use marijuana when he parented MP in the future. The trial court's finding that factor (g) weighed equally was not against the great weight of the evidence. MCL 722.28.
Regarding factor (h) (the home, school, and community record of the child), the trial court found that this factor was not relevant because of MP's age. Although defendants argue that the trial court erred in not considering MP's “home record,” they make reference to evidence of the strong bond between MP and Cassidie, and Jeffrey's ability to give MP access to extended family. Such evidence is properly addressed in other factors, and the trial court's decision to disregard this factor due to MP's age is not against the great weight of the evidence or the product of clear legal error Id.; Pickering, 268 Mich.App. at 5, 706 N.W.2d 835.
Regarding factor (i) (the reasonable preference of the child), the trial court found that the factor was not relevant because of MP's age. Although defendants argue that the trial court erred because it should have considered the circumstantial evidence on the record that MP would prefer to live with them, this factor directs the trial court to consider “reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.” MCL 722.23(i) (emphasis added). The trial court's finding that MP was too young to express a reasonable preference is not against the great weight of the evidence. MCL 722 .28; cf. Bowers v. Bowers, 190 Mich.App. 51, 55–56, 475 N.W.2d 394 (1991) (holding that children as young as six years old are of “sufficient age to express preference” under MCL 722.23(i)).
Regarding factor (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), the trial court found that defendants had “actively worked to keep the child from Plaintiff” while plaintiff had “remained extremely complimentary regarding Defendant mother's parenting skills” and had stated to both defendants his belief that they would be good parents. The trial court found that this factor strongly favored plaintiff. Defendants argue that the trial court erred by failing to consider plaintiff's past statements that he did not want to be a part of MP's life, plaintiff's alleged bad behavior consisting of sexual advances toward Cassidie and accosting Cassidie at the festival, as well as plaintiff's attempts to interfere with MP's existing family unit through litigation. Thus, defendants do not argue that the trial court's finding that they have not allowed any sort of relationship between plaintiff and MP was erroneous. Rather, they apparently argue that their exclusion of plaintiff from MP's life was justified. However, regardless of their reasons, there is no indication in the record that the trial court's finding that Cassidie and Jeffrey excluded plaintiff from forming a relationship with MP was erroneous. The record is clear that defendants expressed an unwillingness to facilitate a close and continuing parent-child relationship between MP and plaintiff, and the trial court's finding on this factor was not against the great weight of the evidence. MCL 722.28.
Regarding factor (k) (domestic violence), the trial court found that “[t]he court considered Defendants [sic] assertions of assaultive conduct by the Plaintiff and found them to be at best hollow and/or obsolete.” The trial court found this factor to weigh equally. Defendants again reference their allegations against plaintiff of unwelcomed sexual advances and of accosting Cassidie at a festival. It appears that the trial court weighed the conflicting testimony from the parties above and found that plaintiff's testimony that he did not make a sexual advance toward Cassidie or accost her was more credible than the testimony to the contrary. We defer to the trial court's determination of credibility. Shann, 293 Mich.App. at 305, 809 N.W.2d 435. The trial court's finding on this factor was not against the great weight of the evidence. MCL 722.28.
Regarding factor (l ) (any other factor considered by the court to be relevant to a particular child custody dispute), the trial court found that:
Defendant mother testified describing [the minor child], “she's always been scared and timid of people, People walk by our house taking a walk and she comes running because I don't know if she thinks they're walking up towards her”—the contrast is a significant departure from the minor observed and described by Ms. Zollar. Defendant further stated “I'm her mother, okay, so you know, I know that child more than anybody, better than anybody. [sic] The Court is persuaded that the Defendant demonstrates a degree of loss of objectivity significant in determining best interest [sic] of the minor and found strongly favoring Plaintiff Father.
Defendants argue that the trial court erred in analyzing this factor for several reasons. They argue that the trial court's characterization of Cassidie's testimony regarding MP's timidity as lacking objectivity suggested that Cassidie did not know what was best for MP. They further argue that the trial court should have addressed the fact that plaintiff had not demonstrated that he was able to handle MP's medical needs, as well as their allegation that Jeffrey was more able to provide care for MP than was Nelson. It appears that the trial court found that Cassidie's testimony that MP was timid and scared of people was not credible in light of conflicting expert testimony, and that further that Cassidie was unable to objectively determine MP's best interests. This Court defers to the trial court's determination of credibility. Shann, 293 Mich.App. at 305, 809 N.W.2d 435. However, this Court is unable to determine from the trial court's ruling precisely why this factor “strongly favored” plaintiff, nor are we able to glean from the record support for the trial court's conclusion that Cassidie was unable to accurately assess MP's best interests due to a loss of objectivity. We thus conclude that the trial court's finding here was against the great weight of the evidence, and that this factor should have been weighed equally between the parents or found not to be relevant. Defendants' further arguments concerning MP's medical needs were addressed in factor (c).
In sum, in assessing the best-interest factors, the trial court found that factor (a) favored Cassidie, factor (j) and factor (l ) strongly favored plaintiff, factor (h) and factor (i) were not relevant to this case, and the other seven factors weighed equally. Our review of the trial court's findings lead us to conclude that factor (d) should have favored Cassidie and that factor (l ) weighed equally or was not relevant to this case. Thus, two factors favored Cassidie, while one factor strongly favored plaintiff, and the majority of the remaining factors weighed equally.
The trial court held as follows concerning child custody:
While the court determined the parties predominately equal in review of the factors applicable and two to 1 in factors favoring the Plaintiff father, primary is the best interest of the minor who is too young to appreciate the uniqueness of her family dynamic or to process the same. Truthfully the adults involved have demonstrated less than a stellar capacity in processing the dynamics of the relevant facts of this case. The court is fully persuaded that review of the facts in this case are clear and convincing that it is in the best interest of [the minor child] that Plaintiff and Defendant Mother shall share joint legal [sic] and sole physical custody is awarded to Defendant Mother with Reasonable Rights of Parenting Time to be achieved for Plaintiff Father.
Based on our review of the best-interest factors, and despite our different assessment of two of those factors, the trial court did not err in awarding sole physical custody to Cassidie and joint legal custody to both parents. The factors were relatively evenly split between the parents, and the trial court's award of joint legal custody was not “grossly violative of fact and logic” as required to show an abuse of discretion. Berger, 277 Mich.App. at 705, 747 N.W.2d 336.12
D. PARENTING TIME
Defendants also argue that the trial court erred by granting plaintiff parenting time. MCL 722.27a(1) provides that “[p]arenting time shall be granted in accordance with the best interests of the child.” The best-interest factors in MCL 722.23 and the factors listed in MCL 722.27a(6) are relevant to determining a child's best interests. Shade, 291 Mich.App. at 31, 805 N.W.2d 1. The best-interest factors in MCL 722.23 are discussed above. The factors in MCL 722.27a(6) are:
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting time.
(h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent's temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent's intent to retain or conceal the child from the other parent.
(i) Any other relevant factors.
While a trial court must make findings under all of the MCL 722.23 factors for a custody decision, “parenting time decisions may be made with findings on only the contested issues.” Shade, 291 Mich.App. at 31–32, 805 N.W.2d 1. MCL 722.27a(3) provides that “[a] child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child's physical, mental, or emotional health.”
In this case, the trial court granted plaintiff supervised parenting time in a therapeutic environment. Defendants argue that the trial court erred in granting plaintiff parenting time under factor (a) and factor (i) of MCL 722.27a(6) because MP was timid around strangers, she had a history of serious illness, it was dangerous to put her in an environment where Cassidie was not present, and plaintiff's home environment was not suitable due to his history of drug use and his failure to demonstrate that he was capable of taking care of MP. The sum of defendants' arguments regarding parenting time is that MP would be placed in danger in plaintiff's home. However, as discussed above, the trial court did not err in finding that plaintiff had the capacity and disposition to provide MP with love, affection and guidance, as well as provide her with food, clothing, medical care, other remedial care, and other material needs. Also, as discussed above, there was no evidence that plaintiff's past marijuana use would affect his performance as a parent going forward. The trial court explicitly declined to find that MP would be endangered physically, mentally, or emotionally by granting parenting time to plaintiff. The trial court's findings were not against the great weight of the evidence, and the trial court's grant of supervised parenting time to plaintiff was not a palpable abuse of discretion. Pickering, 268 Mich.App. at 5, 706 N.W.2d 835.
E. ZOLLAR REPORT
Defendants also present the cursory argument that the trial court violated their rights under the Confrontation Clause, U.S. Const, Am VI, by consulting a report by Zollar that was prepared and submitted after the close of proofs, and by not allowing defendants to cross-examine Zollar regarding that report. The Confrontation Clause does not apply to civil proceedings. Hinky Dinky Supermarket, Inc. v. Dep't. of Community Health, 261 Mich.App. 604, 607, 683 N.W.2d 759 (2004).
Nonetheless, we acknowledge, in response to the dissent, the importance of the right to cross-examine adverse witnesses. We disagree, however, with the suggestion that that right was violated in this case.
To properly address this issue, a brief recap of the trial court proceedings is in order. As noted, the trial court conducted a trial (on May 24, 2013 and June 11, 2013) on both RPA and custody/parenting time issues. During the course of trial, defendants called Zollar as their expert witness, and Zollar testified regarding her opinions concerning MP's best interests and related custody and parenting time issues. Defendants and the dissent thus initially ignore the fact that Zollar was defendants' own expert witness at trial. “A party may not impeach his own witness by cross-examination․” Thelen v. Mutual Benefit Health & Accident Ass'n., 304 Mich. 17, 22, 7 N.W.2d 128 (1942).
On July 26, 2013, the trial court rendered its bench ruling, in which it determined plaintiff's paternity of MP, but noted that it was not yet prepared to issue an order regarding custody and parenting time. The paternity order entered on August 29, 2013.
In rendering its July 26, 2013 bench ruling, the trial court noted that Zollar had already had an opportunity to meet with each of defendants individually, and with MP, but had not yet met with plaintiff. The court thus required that Zollar meet with plaintiff for what it termed a “continuing concluding evaluation as it would relate to the welfare of [MP].” The August 29, 2013 order similarly directed plaintiff to meet with Zollar for that “concluding evaluation” and for the parties to participate in “Cooperative Parenting” classes as directed by the Friend of the Court. The court additionally ordered plaintiff to begin paying child support pursuant to an existing Friend of the Court recommendation.
The trial court received Zollar's report on November 20, 2013, apparently after Zollar held her “concluding evaluation” with plaintiff. Thereafter, the court issued its February 4, 2014 Order for Custody, Parenting Time and Support. The court awarded sole physical custody to defendant mother, joint legal custody, and parenting time to plaintiff “under the supervision of the Friend of the Court with a goal of achieving reasonable rights of parenting time.”
The trial court did not determine at that time, however, what plaintiff's “reasonable rights” of parenting time might look like. Rather, the court provided that the “Friend of the Court, consistent with the proofs at trial, shall establish a bridging schedule for the exercise of initial parenting time to be held in a therapeutic setting with prior evaluating counselor, Robin Zollar, who shall provide parenting guidance for such contact to avoid any psychological difficulties as determined in the best interest of the minor.” The court further ordered that Zollar “shall provide reports upon request of the Friend of the Court for establishment of a graduated parenting schedule towards reasonable rights of parenting time consistent with the development and age of the minor.” In other words, parenting time—even initial parenting time during a bridging period—was not yet established. Rather, the trial court put in place a process for carefully evaluating appropriate parenting time, including both during the initial bridging period and continuing thereafter, that incorporated the continuing guidance and recommendations of defendants' own expert—Zollar—working in conjunction with the Friend of the Court.
The dissent seizes on the fact that Zollar had not yet completed her “concluding evaluation” with plaintiff at the time of trial, and that the trial court considered her subsequent report—along with all of the trial proofs, including Zollar's testimony—in issuing its February 4, 2014 order. But while we agree that it may have been better practice to have received that report before the conclusion of proofs at trial, and to have included that report in the trial court record, we do not agree that the process was so fatally flawed as to effect a denial of due process requiring reversal.
We reiterate that Zollar was defendants' own expert witness, whose testimony defendants presented at trial. She simply was not, as is suggested, an “adverse” witness, whom defendants had a right to “cross-examine.” Nor was she a court-appointed witness, so as to implicate MRE 706 and give rise to a requirement of “notice” to the parties and a right of cross-examination. As Zollar was defendants' own expert witness, defendants required no notice, and did not have a right of cross-examination. Further, defendants knew at the time of the trial court's July 26, 2013 bench ruling, and the succeeding August 29, 2013 order, that the trial proofs were closed, that Zollar was yet to meet with plaintiff for a “concluding evaluation,” and that “before any further orders from the Court will issue regarding contact of any form, Ms. Zollar needs to complete that and report to the Court.” Defendants thus were fully aware of the procedure being employed, and did not object. Such conduct could be held to constitute a waiver of objection to this procedure on appeal. See People v. Carines, 460 Mich. 750, 762, 597 N.W.2d 130 n .7; 460 Mich. 750, 597 N.W.2d 130 (1999), quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, ––– L.Ed.2d ––––, ––––, 123 L.Ed. 508 (1993) (defining waiver as the “intentional relinquishment of a known right).
In its May 28, 2014 order denying defendants' motion for reconsideration, the trial court noted that “Ms. Zollar stated [in her trial testimony] ‘I think if someone is willing to make a very serious ongoing workable commitment where they are willing to work with the other caretakers, all the other caretakers, without being adversarial, then it can be a very good thing for children. It means, as we'd like to think, yeah, somebody else loves that child’. In that situation [MP] could benefit.” The court thus stated that “parenting time shall consistent with Robin Zollar's recommendation be supervised by her in a therapeutic environment achieving Reasonable Rights of Parenting Time as swiftly as possible in the best interest of the minor.” Yet again, therefore, the trial court required and highlighted the continuing role that Zollar—defendants' own expert—would continue to play.
If we were to accept the position of the dissent—that due process was reversibly offended as a result of defendants' inability to cross-examine their own expert witness after she reported to the court following her “concluding evaluation” with plaintiff—then we similarly would be obliged to conclude that due process will continue to be offended, as appropriate parenting time parameters are continually evaluated going forward, whenever Zollar issues future court-directed reports to the Friend of the Court—unless defendants are afforded, each and every time, a further opportunity to cross-examine Zollar. We decline to make such a finding.
We further note that, at a July 21, 2014 hearing, the trial court observed, in denying defendants' motion to stay proceedings (pending appeal) relative to parenting time, that it had “addressed that pretty specifically as to why it moved forward with an Order, you know, when it did, inconsistent again with the statements of Ms. Zollar.” (Emphasis added). The record thus is clear that, in issuing its custody and parenting time order, the trial court did not follow the recommendation of defense expert Zollar. Defendant and the dissent do not explain how, particularly in that circumstance, defendants were reversibly denied due process by not being allowed to further “cross-examine” their own expert.
Defendants have failed to demonstrate plain error in this regard. Kern, 240 Mich.App. at 336, 612 N.W.2d 838.
IV. EQUAL PROTECTION CHALLENGE
Finally, defendants argue that the MCL 722.1441 violates the Equal Protection Clause of both the Michigan and United States Constitutions. US Const, Am XIV; Const 1963, art 1, § 2. This argument was not presented to the trial court and is unpreserved. Polkton Charter Twp., 265 Mich.App. at 95, 693 N.W.2d 170. We review this constitutional challenge for plain error. Smith, 269 Mich.App. at 427, 711 N.W.2d 421.
Equal protection of the law for all persons is guaranteed by the Michigan and United States Constitutions. US Const, Am XIV; Const 1963, art 1, § 2; Shepherd Montessori Ctr. Milan v. Ann Arbor Charter Twp., 486 Mich. 311, 318, 783 N.W.2d 695 (2010), reh den 487 Mich. 859, 784 N.W.2d 825 (2010), cert. den ––– U.S. ––––, 131 S.Ct. 928, 178 L.Ed.2d 752 (2011). Both guarantees afford similar protection. Shepherd Montessori Ctr. Milan, 486 Mich. at 318, 783 N.W.2d 695. The constitutional guarantees of equal protection require that “all persons similarly situated be treated alike under the law.” Id. However, they do not require that people in different circumstances be treated the same. In re Parole of Hill, 298 Mich.App. 404, 420, 827 N.W.2d 407 (2012). “To be considered similarly situated, the challenger and his comparators must be prima facie identical in all relevant respects or directly comparable ․ in all material respects.” Lima Twp. v. Bateson, 302 Mich.App. 483, 503, 838 N.W.2d 898 (2013) (citations and quotations omitted).
In this case, defendants challenge MCL 722.1441, which is a part of the legal framework that the Michigan legislature has chosen to implement to determine the paternity of a minor child. The legal effect of a court's determination that a “child is born out of wedlock” pursuant to MCL 722.1441 is to grant the biological father of a child standing to establish paternity pursuant to the paternity act. MCL 722.717(1); MKK, 286 Mich.App. at 557, 781 N.W.2d 132. Thus, to the extent that MCL 722.1441 permitted Jeffrey and plaintiff to be treated differently in this case, it is only because plaintiff was MP's biological father, and Jeffrey was not. Because the constitutional guarantees of equal protection do not require that persons in different circumstances be treated the same, we conclude that those guarantees were not implicated in this case. Parole of Hill, 298 Mich.App. at 420, 827 N.W.2d 407. Although defendants argue that the RPA severs a fundamental liberty interest in the presumed father, the actual effect of the RPA, combined with the paternity act, is to provide a mechanism for determining which man is the father of a minor child, and thus in possession of a fundamental liberty interest in his relationship with the child. Grimes, 302 Mich.App. at 531–532, 839 N.W.2d 237. We find no merit to defendants' constitutional challenge to MCL 722.1441.
During the first two-and-a-half years of her life, MP lived solely with her married parents, Cassidie and Jeffrey Petlick. Jeffrey's awareness that he was not MP's biological father did nothing to dim his devotion to his daughter.
Joseph Demski, MP's biological father, sought to establish a role for himself in MP's life. The trial court considered Demski's paternity claim under the Revocation of Paternity Act (RPA), MCL 722 .1431 et seq., and convened a two-day evidentiary hearing. The trial court ruled that MP was born out of wedlock and entered an order of filiation in Demski's favor, thereby disestablishing Jeffrey's paternity and extinguishing his parental rights, despite that Jeffrey continues to live with his wife and MP. Six months later, without holding an additional hearing, the trial court awarded Demski joint legal custody of MP and parenting time.
The majority detects no errors in the trial court's rulings or procedure. I respectfully dissent. I believe that Demski was obligated to produce clear and convincing evidence that declaring MP born out of wedlock would serve the child's best interests, and that this showing was not made. Moreover, the trial court's ex parte consideration of expert testimony and its failure to hold a separate evidentiary hearing to consider the child's best interests contravened the Child Custody Act (CCA), MCL 722.21 et seq., mandating reversal of its joint legal custody and parenting-time decisions.
I. THE PATERNITY PROCEEDINGS
The RPA permits a court to determine that a child born to married parents was “born out of wedlock” when certain circumstances are shown. MCL 722.1441(3)(c). That Cassidie was not married at the time of MP's conception and that Demski filed his revocation of paternity action within three years of MP's birth supplied the predicate grounds for Demski's claim. Once established, those facts empowered the trial court to gather evidence of MP's best interests in deciding whether to declare MP a child “born out of wedlock.”
A child's best interests are embedded within the Act: “A court may refuse to enter an order setting aside a paternity determination or determining that a child is born out of wedlock if the court finds evidence that the order would not be in the best interests of the child.” MCL 722.1443(4). Notably, the Legislature placed the best-interest inquiry ahead of a determination that a child was born out of wedlock. Only after taking into account a child's best interests is a court vested with authority to “[m]ake a determination of paternity and enter an order of filiation as provided under ․ MCL 722.717.” MCL 722.1443(2)(d).
DNA testing revealed that Demski fathered MP. MCL 722.1445 specifies that the clear and convincing standard of proof applies regarding the evidence that an alleged father “is the child's father[.]”1 DNA proof of paternity easily satisfies that standard. However, the RPA endorses that genetics alone do not a father make. “The results of blood or tissue typing or DNA identification profiling are not binding on a court in making a determination under this act.” MCL 722.1443(5). Furthermore, the Legislature explicitly authorized a trial court to “refuse to enter an order setting aside a paternity determination or determining that a child is born out of wedlock if the court finds evidence that the order would not be in the best interests of the child.” MCL 722.1443(4) (emphasis added).2 The Act makes no mention of the standard of proof applicable to the court's best-interest determination under the RPA. The majority assumes that the preponderance standard applies. In my view, the appropriate standard is that of clear and convincing evidence.
This issue comes to us by way of the Petlicks' argument that the trial court failed to assign to Demski “the burden of persuasion.” I agree with the majority that the record generally refutes that proposition. The Petlicks further contend that based on “the presumption in favor of maintaining the child's established custodial environment,” Demski was required to present “clear and convincing evidence” that MP's best interests would be served by revoking Jeffrey's presumed paternity. The majority observes that “the trial court indicated that it had applied a clear and convincing evidentiary standard when it reached its determination regarding the best interests of the child under MCL 722.1443(4).” The record is not nearly so straightforward. And in this case, Demski's evidence concerning MP's best interests fell well short of even an evidentiary preponderance.
Indisputably, the trial court used a clear and convincing standard when ruling that Demski had demonstrated “that he is the child's [biological] father.” The Legislature plainly prescribed that “clear and convincing” evidence must control a court's paternity determination in MCL 722.1445. The DNA evidence supporting Demski's parentage went unchallenged. Hence, the trial court's distinct articulation that clear and convincing evidence dictated its paternity finding is unsurprising. Whether the trial court employed a clear and convincing standard when it evaluated the child's best interests under the RPA represents an entirely different question.
The trial court prefaced its discussion of the statutory factors involving a child's “best interests” as follows:
The plaintiff has timely filed a complaint to determine parentage, custody, child support, and parenting time. Accordingly MCL 722.1443(13)4 [sic MCL 722.1443(4) ] directs that the Court may refuse to enter an order determining that a child is born out of wedlock if the Court finds evidence that the order would not be in the best interest the child.
The court proceeded to discuss best-interest factors (d), (f), and (g). After reviewing the evidence related to these factors, the court reiterated that it had found “by clear and convincing evidence” that Demski was MP's “biological father,” but made no specific comment as to the standard of proof it had applied when analyzing the statutory factors. Rather, the court appeared to separate its “clear and convincing” biology finding from its best-interest determinations:
The Court is fully persuaded, having placed as indicated, the determination of what weight's to be given to the testimony of witnesses, all exhibits, all testimony, and clearly that of the expert witness. In light of the direction and the new direction and law for the State of Michigan, the Court is going to grant the petition of the plaintiff.
With that, an order, Mr. Banyon, consistent with [the] directive of MCL 722.1445 in terms of the termination of paternity; again, by clear and convincing evidence that your client is indeed the biological father and the Court having made specific findings relative to the other factors of the new act, consistent with MCL 722.717 Section 7, an order for paternity would enter․
A fair reading of this ruling leaves open to question whether the trial court determined that clear and convincing evidence, rather than an evidentiary preponderance, supported its best-interest finding under the RPA.
Regardless of which standard of proof applies, I agree with the majority that Demski bore the burden of persuading the court that determining MP to have been born out of wedlock would serve her best interests. During his case-in-chief, Demski presented virtually no evidence addressing MP's best interests. His testimony focused on himself and the historical events surrounding MP's conception and birth, and his justifications for having had no contact with the child for most of her life. His girlfriend's testimony centered on the couple's pit bull and the reasons that it would pose no danger to MP. She also assured the court that the couple had discontinued using marijuana. Demski's mother testified that he had never harmed a child, and that she was available to assist Demski “in whatever his needs may be.”
Had the trial ended with Demski's proofs, the record would not have supported a best-interest finding in Demski's favor. Demski presented precious little evidence concerning MP's needs or interests. Only a miniscule quantum of testimony related to Demski's plan for dealing with MP's cognitive and emotional responses to the insertion of a new father in her young life. Aside from his cellular contribution to MP's conception, Demski offered no evidence that disestablishing Jeffrey's paternity would advance the child's best interests.
The Petlicks' evidence more directly addressed the RPA's best-interest factors, primarily via the testimony of psychotherapist Robin Zollar. No discussion ensued during the trial, however, regarding the standard of proof applicable to the trial court's evaluation of Zollar's testimony, or that of any other witnesses, regarding MP's best interests. To the extent the majority endorses a preponderance standard, I disagree.
Given that RPA proceedings implicate weighty interests for both parents and children, I believe that the clear and convincing standard must govern the best-interest determination. Where a statute is silent as to the applicable standard of proof, the issue has “traditionally been left to the judiciary to resolve.” Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 284, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). The standard of proof utilized by a court “reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.” Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ “ Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (citation omitted). “[W]hile private parties may be interested intensely in a civil dispute over money damages, application of a ‘fair preponderance of the evidence’ standard indicates both society's ‘minimal concern with the outcome,’ and a conclusion that the litigants should ‘share the risk of error in roughly equal fashion.’ “ Santosky, 455 U.S. at 755 (citation omitted).
I readily acknowledge that when a statute is silent regarding the applicable standard of proof, the default position is an evidentiary preponderance. However, the United States Supreme Court has “mandated an intermediate standard of proof—‘clear and convincing evidence’—when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.’ “ Id. at 756, quoting Addington, 441 U.S. at 424. The interests at stake here implicate the very essence of being a parent: the right to make decisions regarding a child's care, control, health, education and association, and the ability to maintain inviolate a family's integrity. “A paternity suit, by its very nature, threatens the stability of the child's world.” McDaniels v. Carlson, 108 Wash.2d 299, 310, 738 P.2d 254 (1987). Permanently stripping Jeffrey of his fatherhood of MP deprives both MP and Jeffrey of their mutual liberty interests in a continuing parent-child relationship. In my view, the parties' competing rights and interests qualify as “particularly important” and “more substantial than mere loss of money,” necessitating application of a standard of proof more demanding than a mere preponderance. And I agree with the Washington Supreme Court in McDaniels: “Where these rights come into conflict, the rights of the child should prevail.” Id. at 311, 738 P.2d 254.
I acknowledge that in cases involving the termination of parental rights, the preponderance of the evidence standard applies to a court's best-interest determination. In Re Moss, 301 Mich.App. 76, 83, 836 N.W.2d 182 (2013). In so holding, this Court stressed that the clear and convincing standard applies to the first stage of termination proceedings, in which a court determines whether the moving party has demonstrated a statutory ground supporting termination of a parent's constitutional rights to the care and custody of a child. Id. at 86, 836 N.W.2d 182. Applying the due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Moss Court explained that during the termination stage, “the use of error-reducing procedures[ ] such as the heightened standard of proof of clear and convincing evidence” favors the constitutional interests at stake. Moss, 301 Mich.App. at 87, 836 N.W.2d 182. Once a finding of statutory grounds for termination has been made, however, “the interests of the child and the parent no longer coincide, and the need for a heightened standard of proof is not present in the best-interest stage.” Id . at 88, 836 N.W.2d 182.
The procedure set forth in the RPA meaningfully differs from that of a termination case. Under the RPA, a trial court must consider a child's best interests when considering whether to declare a child born out of wedlock. MCL 722.1443(4). This initial stage of RPA proceedings corresponds to the termination stage in an action brought under MCL 712A.19b. As in an action seeking the termination of parental rights, a presumed father under the RPA maintains a liberty interest in the custody of a child—and the child in the custody of her parent—until clear and convincing grounds justify severing that relationship. And the RPA clearly contemplates that a judge may find that despite clear and convincing DNA evidence of paternity, a child's best interests would be jeopardized by the interruption of her stable and intact family life.
Although the Child Custody Act (CCA), MCL 722.21 et seq., applies in a different setting, it guides my reasoning regarding the appropriate standard of “best interests” proof in a revocation of paternity case.3 MCL 722.25(1) directs that “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 shown by clear and convincing evidence.” The Supreme Court elaborated in Hunter v. Hunter, 484 Mich. 247, 265, 771 N.W.2d 694 (2009): “A third party seeking custody must meet a higher threshold. He or she must establish by clear and convincing evidence that it is not in the child's best interests under the factors specified in MCL 722.23 for the parent to have custody.” Similarly, a court may not “issue a new order so as 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.” MCL 722.27(1)(c). Our state's jurisprudence has “consistently recognized” that the presumption of legitimacy arising from a child's birth to a married mother may be overcome only by a showing predicated on clear and convincing evidence. In re KH, 469 Mich. 621, 634–635, 677 N.W.2d 800 (2004). As MP's legal father, Jeffrey was entitled to a presumption that MP's best interests would be served by his continuation in that role. See MCL 722.25(1).
In enacting the RPA, the Legislature left the statutory presumptions intact. Despite that the RPA expands the right of putative fathers to challenge the paternity of a child born within a marriage, the law rebuttably presumes that a child's best interests are served by maintaining that relationship, regardless of biological “truth.” Our Supreme Court has never hesitated to assign a clear and convincing standard of proof to the evidentiary task of rebutting a statutory presumption. See Reed v. Breton, 475 Mich. 531, 541, 718 N.W.2d 770 (2006).
At the outset of these proceedings, Demski was not MP's parent. Thus, until the trial court entered its order of filiation, Demski remained a “third person.” See MCL 722.22(j). Even armed with the DNA results confirming his biological connection, Demski had no inherent right to a declaration of his paternity. MCL 722.1443 subsections (4) and (5) underscore that DNA is not determinative in an action brought under the RPA. By commanding consideration of a child's best interests as part and parcel of the RPA inquiry, the Legislature placed the child's interests on a footing at least equal to that of DNA. Moreover, the statute's structure establishes that the best-interest determination must precede entry of an order declaring that a child was born out of wedlock. The parental rights and concomitant rights of an alleged father (such as Demski) emerge only after a court has conducted a best-interest inquiry.
The RPA's ordering of priorities compels dual conclusions: (1) during the RPA proceedings, Demski's interest in establishing his paternity was subordinate to MP's best interests, and (2) as MP's legal father, Jeffrey enjoyed a presumption that MP's best interests would be served by maintaining the status quo. In structuring the RPA in this fashion, the Legislature implicitly declared that a child's best interests may outweigh a genetic link between a child and a stranger. And although the Legislature did not specify the standard of proof applicable to best-interest determinations under the RPA, it did not enact the statute in a vacuum. The principles that only clear and convincing evidence of a child's best interests justify disrupting an established environment or depriving a legal father of his paternal rights are firmly fixed in family law. I cannot conclude that the Legislature intended to abandon the heightened standard of proof in a directly analogous custodial context simply because it failed to reiterate it in the RPA.
Orders entered under the RPA have grave and far-reaching consequences. Disestablishing Jeffrey's paternity renders him a legal stranger to MP, despite that Jeffrey and Cassidie will continue to raise her as parental partners and will appear to the world (such as MP's school and friends) as her parents. As Judge Kirsten Frank Kelly pointed out in Helton v. Beaman, 304 Mich.App. 97, 126, 850 N.W.2d 515 (2014) (K.F. Kelly, J., concurring), if Cassidie were to die, Jeffrey “would ․ have to seek custody as a third party and there is no guarantee that he would succeed or even have standing.” Regardless of subsequent custody or parenting time decisions, inserting a new father into a child's life is inherently destabilizing. MP looked to Jeffrey for fulfillment of her needs. She understood that he, and only he, was her dad. Disconnecting and thereby forever altering that relationship risks incalculable damage to a child's development. In my view, the Legislature recognized as much by explicitly permitting a court to disregard biology and to enforce the presumption favoring stability and marriage.
Thus, I distill from the RPA's framework and its statutory background that the reciprocal rights of a married father and his child may not be disrupted absent clear and convincing proof that such infringement serves a child's best interests. Adoption of this higher standard of proof ensures that the evidence supporting a revocation of paternity decision meets “the degree of confidence our society thinks [a factfinder] should have in the correctness of factual conclusions” for this type of adjudication. Santosky, 455 U.S. at 755.
Furthermore, the evidence presented during the RPA hearing did not clearly and convincingly demonstrate that MP's best interests would be served by severing Jeffrey's paternal rights and inserting Demski in that role. Even under a preponderance standard, the trial court's best-interest findings contravened the great weight of the evidence.
The court recognized that under factor (d), Jeffrey and his daughter “have a strong father/daughter bond of reciprocal love evidenced by tender and affectionate interaction,” and that Demski had no established relationship with the child. This factor militated against revoking Jeffrey's paternity. Factor (e) requires consideration of “the age of the child.” The trial court observed, “There is no contest to the date of birth, and almost two and a half year old age for [MP].” This “finding” omits mention of the testimony of psychologist Robin Zollar regarding the cognitive abilities and emotional capacities of two-year-old children. In my view, Zollar's unchallenged testimony supports that affiliating Demski would not serve MP's best interests.
Zollar explained that at MP's age, “children are still very dependent physically and emotionally on a parental caretaker[.]” Further, Zollar stressed, “it is also an age that is influenced by the ability to communicate and the ability to receive information.” Although MP could speak using three-word sentences, “her receptive language skills and her expressive language skills are at a point where she can't always express herself or always understand,” as is “normal” at her age. Zollar explained that at two-and-a-half years of age, a child's receptive language skills do not encompass the idea of a new parent, and the child lacks “the ability to resolve conflicts or feelings.” Accordingly, a two-and-a-half-year old is “less likely” to understand the role of a new parent. “[T]hey can't talk about it,” Zollar explained, because they have not yet developed the required language skills. A child's inability to articulate confusion and distress may precipitate very real trauma. Zollar highlighted that “change in the parental family structure” may produce “mental anxiety. It can cause some acting out behaviors, such as problems with sleep, different things for different children. Frustration and anger.” Zollar continued:
Two and a half can be a pretty frustrating anger age anyway, because they're starting to, what we call “individuate,” they're beginning to separate and see themselves as a little being, as opposed to just a part of the parents․ And so there's a lot going on at ․ that particular developmental age, with not the ability to be able to utilize language to resolve it or to understand it․
In my view, the great weight of the evidence supported Zollar's testimony that because of her age, MP's best interests would not be served by opening the door to a situation she lacked the ability to understand or discuss. Furthermore, the trial court's failure to consider the age-specific evidence addressing MP's best interests constitutes legal error.
Zollar also provided the most useful evidence regarding factor (f), “[t]he harm that may result to the child.” On direct examination, Zollar admitted that she had not met Demski, and could not offer opinions regarding him in particular. Generally, she offered, introducing a new person “as an individual” would be “less confusing” than introducing the new person as a parent. Zollar's testimony continued as follows:
They have a mom and they have a dad, and I think it can be very difficult for kids when somebody says, “Oh, I'm your other dad” or “I'm your real dad” or “I'm your dad too.” I think that's very confusing, particularly when you're fairly young. I think it's pretty hard to put that into any perspective. I think that different issues happen when you're older and that happens, but I think it's pretty basic when you're two and [a] half years old that that's going to be pretty confusing.
* * *
Q. So let's get back to the factor. Do you have an opinion in this case, again based on observation, experience and all that, whether introducing a new father figure, be that Mr. Demski or anyone else, would cause harm to [MP]?
A. It could.
Q ․ And ․ what type of harm could result?
A ․ I think given her age, I think, and her reticence around new people, I think that could cause her to feel pretty insecure and fairly threatened and pretty confused. And the confusion may cause the feeling threatened, but I think it's still going to leave her feeling pretty vulnerable.
Zollar elaborated that adding a new “parental figure when a parental figure already exists ․ can sometimes create some alienation between the child” and the original parenting figure. The concomitant confusion “can lead to some anger” or “pulling back” from the original father. Additionally, Zollar emphasized, introducing a new parent can cause “some real anxiety, particularly dependent on how that introduction is made, how that relationship is expected or requested to proceed.” She concluded: “And sadly, there are many times that the child isn't taken into consideration, the parents are.”
On cross-examination, Zollar reiterated that introducing a new parent could harm a child, while admitting that it could also benefit the child. She clarified that if the new parent supports the child emotionally “[f]or a sustained period of time,” the child could benefit. As Zollar's testimony concluded, the Petlicks' attorney (Kurt Armstrong) returned to the issue of harm to MP:
Q. Is it more likely that harm would result to [MP] by introducing any new parent figure at this time in her life?
Mr. Banyon: Objection. I don't believe she can form an opinion on that.
Mr. Armstrong: Well, I think she can.
The Court: Now, I—the Court thinks she can, based on the foundation that's there and then her expert—we'll overrule the objection.
Now, if you can't, we've got a problem. Can you answer the question?
[Zollar ]: I'll try. I think it depends on the things that I talked about earlier: the commitment, the way it is done, and the sustainability and the willingness of all the parties to work towards this happening in a healthy way. I have some cases that I'm working with right now with preschool-age children where there are very similar issues. And those are not new issues, I've had those issues for years that I've had to work with. But so much is dependent on that commitment. The motive of the adults involved, the commitment, the ability to listen and learn when suggestions are given by someone whose primary interest is the child.
Grownups can take care of themselves, little kids can't. And so they need somebody that can act as an advocate for that relationship going in a healthy direction. And I think if that is available, I think it can be a very good thing for a child. I think if somebody says, “Oh, well, yeah, we'll just her [sic] for an hour or so and she'll be with ․ Uncle Bob and Aunt Suzie and dad and she'll be fine,” I think that is not taking into account the child's needs. I think that is only focusing on the adult needs and I think that is wrong; because she has no way to say, “No, I'm not going to do it.” She has no way to ask questions at this point. She has no way to understand.
So it's nothing personal about any individual. It's what's going to be best for this child. And I—I strongly believe that, because I've seen really awful things happen when that doesn't happen.
Based on this testimony, the trial court found:
The testimony found to be most reliable relative to determining harm is that of the expert witness․
Robin Zollar conducted three sessions, meeting one each with the defendants individually and a joint session including the minor, providing opportunity to observe the minor's interactions with defendants. She confirmed that the minor is initially reticent around new people. Her responses however to the questioning related directed to the harm factor address less the issue of introduction of plaintiff's interaction with the minor, but rather the question of how that would occur and expectations upon the minor. These are factors she was not afforded the opportunity to ask the plaintiff but would have desired to do so.
Her essential concerns articulated are first the limited verbal skills of the minor, and secondly, the willingness of adults to get along; their commitment. She did finally opine that [MP] could benefit from sustained commitment from the alleged father.
That MP “could benefit from sustained commitment from the alleged father” hardly qualifies as clear and convincing evidence that MP would benefit from a change in her paternity, or that she would not be harmed by the profound disruption of her life occasioned by the introduction of a new parent. In my estimation, the trial court's resolution of the harm inquiry rested on speculation, not proof. Stated alternatively, the evidence was in equipoise. Substituting Demski as MP's new father could hurt MP, or it might benefit her.
It bears emphasis that Demski bore the burden of proving that it was in MP's best interests to revoke Jeffrey's paternity and to substitute Demski as her new father. Demski brought forward no evidence regarding MP or her interests. And Demski offered no evidence that the very real harms Zollar described could be avoided or mitigated. Indeed, Demski never even acknowledged awareness of any emotional dangers for MP attendant to his parenthood quest.
The majority correctly observes that “Zollar's expert testimony supported both a conclusion that MP could be harmed by [Demski's] introduction into her life and also that his introduction could benefit her.” In other words, the majority, too, views the evidence on this score as equally balanced. I believe the majority overlooks the obvious: Demski failed to carry his burden of proof on this factor.
Factor (g) requires a court to consider “[o]ther factors that may affect the equities arising from the disruption of the father-child relationship.” The court acknowledged that this factor required it to consider “identifiable emotional, physical, and financial” equities. The court's discussion of this factor was limited to the following paragraph:
Consistent with the testimony of the defendants, they are committed to each other, and each to [MP], whether Jeffrey Petlick is the identified legal father because of his bond of love for her and he will continue to support emotionally, financially, and provide the protections she requires. Equitably for the minor by law, the plaintiff would be required to provide for [MP]'s financial support.
While Jeffrey's multi-faceted commitment to MP is both admirable and relevant, the court avoided discussion of the evidence actually submitted on this score. Zollar expressed that if a new parent “is willing to make a very serious ongoing workable commitment where they are willing to work with the other caretakers, all the other caretakers, without being adversarial, then it can be a very good thing for children.” Unrebutted evidence established that Demski's desire to parent MP had been inconsistent, at best. Text messages sent by Demski demonstrate that on more than one occasion, he expressed interest in “signing over” his parental rights to avoid paying child support. One message states: “[I] was told to plan on selling my house to afford this.” Demski answered affirmatively when asked on cross-examination:
You acknowledge that ․ your actions went from starting out, ‘I'm involved, I went to the doctor's office,’ to ‘I don't want to be involved’ in November. ‘I want to have my rights terminated’ or ‘I don't want to have any rights, I don't want to pay any child support’, correct?
The record simply does not substantiate a clear or convincing likelihood, or an evidentiary preponderance, that Demski would commit himself and his resources over the long term. His track record of commitment to MP is hardly consistent or reassuring.
While the trial court's exercise of its discretion in considering the RPA's best-interest factors should be afforded deference, I believe that the evidence clearly preponderates against the trial court's factual findings under factors (e), (f), and (g). Because the great weight of the evidence supported that MP's best interests would not be served by disestablishing Jeffrey's paternity and inserting Demski as her new father, I would reverse the trial court's orders finding MP a child born out of wedlock and affiliating Demski.
II. THE CUSTODY AND PARENTING TIME ORDER
The trial court issued its bench ruling under the RPA on July 26, 2013. In that ruling, the court ordered that Demski meet with Zollar for a “continuing concluding evaluation as it would relate to the welfare of [MP].” The court continued: “And before any further orders from the Court will issue regarding contact of any form, Ms. Zollar needs to complete that and report to the Court. I think that is related to both custody and parenting time.”
On August 29, 2013, the trial court entered an order memorializing its bench ruling. That order stated in relevant part: “Child custody and parenting time issues are reserved until further Order from this Court[.]” On February 4, 2014, without holding an evidentiary hearing or any record proceedings substantively addressing MP's custody, the trial court entered an order awarding Cassidie and Demski joint legal custody of MP, with Cassidie retaining physical custody. The order stated that Demski would have parenting time “under the supervision of the Friend of the Court with a goal of achieving reasonable rights of parenting time.” Two weeks later, the Petlicks moved for reconsideration of the custody and parenting time order, arguing that the trial court should not have entered it without holding a hearing under the CCA. The trial court responded on May 28, 2014, by denying the motion, and entering a seven-page written order reviewing the court's findings under the best-interest factors of the RPA. For the first time, the court detailed its findings regarding MP's established custodial environment and the best-interest factors stated in the CCA.
The majority holds that the Petlicks failed to preserve their objection to the procedure utilized by the trial court, specifically, the trial court's failure to hold a custody hearing. The majority has either misapprehended the chronology of events or has disregarded basic preservation principles.
No record evidence supports that the Petlicks could or should have anticipated that the trial court would issue a custody and parenting time order without holding a separate evidentiary hearing. Accordingly, the Petlicks could not have raised an objection to the trial court's procedure until the trial court sua sponte entered its February 4, 2014 order.
The Petlicks objected to the trial court's custody order in a timely fashion, 14 days after that order entered. They had no basis for objecting earlier, as they had no awareness that the trial court planned to enter a final custody order without holding a hearing as required under the CCA. They challenged the trial court's custody and parenting time order with a motion for reconsideration because reconsideration was the only vehicle available to them. I know of no precedent requiring litigants to read tea leaves or judicial hints to foresee a ruling not yet made. In my view, the issue raised in the Petlicks' motion for reconsideration is fully preserved. See Peterman v. Dep't. of Natural Resources, 446 Mich. 177, 183, 521 N.W.2d 499 (1994). As such, it should be reviewed de novo. See Schlender v. Schlender, 235 Mich.App. 230, 232, 596 N.W.2d 643 (1999) (“This Court reviews a claim of legal error [there the failure to conduct an evidentiary hearing] de novo.”).
The trial court committed two serious errors warranting reversal of its custody and parenting time order. First, it rendered its order in the absence of an evidentiary hearing during which the parties could introduce evidence relevant to the factors set forth in the CCA and cross-examine witnesses. Second, in crafting its ruling, the trial court considered ex parte evidence which it deliberately withheld from the parties. Both errors should fundamentally undermine a reviewing court's confidence in the trial court's custody and parenting-time rulings.
The CCA “is intended to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Heid v. AAASulewski (After Remand), 209 Mich.App. 587, 593–594, 532 N.W.2d 205 (1995). Here, the trial court correctly recognized that MP's established custodial environment resided with Cassidie.
A court may not issue a new order changing a child's established custodial environment absent “clear and convincing evidence that it is in the best interest of the child.” MCL 722.27(1)(c).4 The court rules contemplate that a court will conduct an evidentiary hearing in contested custody cases. MCR 3.210(C)(1) provides that “[w]hen the custody of a minor is contested, a hearing on the matter must be held within 56 days (a) after the court orders, or (b) after the filing of notice that a custody hearing is requested[.]” Ample case law supports that a court cannot order a custodial change without first holding a hearing. See Mann v. Mann, 190 Mich.App. 526, 531–532, 476 N.W.2d 439 (1991) (“Permitting a court to even temporarily change custody solely on the basis of a Friend of the Court referee's recommendation and without holding a hearing would circumvent and frustrate one of the purposes of the Child Custody Act—to minimize the prospect of unwarranted and disruptive changes of custody.”), and Pluta v. Pluta, 165 Mich.App. 55, 60, 418 N.W.2d 400 (1987) (“We do not believe that the trial court should be allowed to circumvent and frustrate the purpose of the law by issuing an ex parte order changing custody without any notice to the custodial parent or a hearing on the issue whether clear and convincing evidence was presented that a change of custody was in the child's best interest.”).
The majority dispenses with the need for a hearing by holding that the bench trial under the RPA sufficed. The majority observes, “The trial featured seven witnesses providing several hundred pages worth of testimony and dozens of exhibits presented by the parties.” While that may be true, the trial did not “feature” a full exposition of evidence relevant to MP's best interests under the CCA because the trial court refused to consider it. Equally important, the trial court denied the parties an opportunity to cross-examine Zollar regarding the custody and parenting-time recommendations which ultimately guided the trial court's decisions.
During Zollar's testimony at the RPA trial, the Petlicks' counsel attempted to elicit her opinion regarding parenting time in the event the court ordered it. Demski's counsel objected, arguing that that Zollar's opinion was not relevant “to these proceedings”:
Q. The—the—the Court may ultimately determine that—that Mr. Demski does have some parenting time; could happen. If—if—if that occurs, would—would you be willing to—to act and to assist in any bridging—
Mr. Banyon: I'm—I'm going to object to this question, Your Honor. It's certainly not relevant to these proceedings.
Mr. Armstrong: I'll withdraw it. I'm just trying to help, Judge. I'll withdraw the question. I'm done with the witness.
The Court. All right, it's withdraw[n].
Shortly thereafter, the Petlicks' attorney tried to question Zollar regarding her experience in “custodial dispute[s]” not involving abuse or neglect. The trial court sustained Demski's relevance objection:
Q. And how many children have you assessed under the age of two and a half not related to sexual abuse?
A. Well, probably out of the several hundred, probably 150 or so, given the fact that I frequently get referrals regarding other—other issues that involve kids—or children under the age of two and a half.
Q. And how many of that hundred or so have you—
Mr. Armstrong: Your Honor, I believe she said 150.
Q.—150 or so have you assessed with respect to a custodial dispute not involving abuse or neglect?
Mr. Armstrong: Your Honor, I'll object. This isn't a custodial dispute. Mr. Branyon: It involves custody,—
Mr. Armstrong: Well,—
Mr. Banyon:—parenting time.
Mr. Armstrong:—it may become one, but it's not at this point, Your Honor.
The Court: I'm—and your objection is?
Mr. Armstrong: My objection is it's not relevant. I attempted to go into that particular area and he cut me off, and so apparently he doesn't want to go into that area; and, therefore, it's not relevant today. We could deal with that later apparently. If—if the Court—
The Court: All right. I'm going to—I'm going to sustain the objection as to where we are now․
These excerpts illustrate that neither the parties nor the trial court intended that the RPA hearing would encompass a best-interest hearing under the CCA. Zollar's views were not aired or subjected to scrutiny through cross-examination. Not a word was spoken by the parties or the trial court regarding most of the best-interest factors under the CCA.5 Nor does the record substantiate that the parties agreed to forego a separate best-interest hearing in the interest of conducting an omnibus proceeding. In my view, the trial court clearly and substantially erred by relying on a limited record to decide the issues of custody and parenting time. See Crampton v. Crampton, 178 Mich.App. 362, 363, 443 N.W.2d 419 (1989) (“It was not sufficient for the court to rely on the testimony and evidence from the referee's hearing and to limit the taking of further testimony as was done here.”).
Moreover, a child-custody hearing demands the presentation of admissible evidence subject to cross-examination. The trial court requested and entertained “a report with recommendations relative to Custody and Parenting time,” authored by Zollar. According to the trial court's written opinion denying the Petlicks' motion for reconsideration, the report was “received by the court [on] November 20, 2013.” Zollar's report is not in the record and apparently was not provided to counsel. Yet according to the trial court's opinion on reconsideration, the substance of the report formed the basis for the trial court's parenting time order.6
MRE 706 allowed the trial court to appoint Zollar as an expert witness. However,
[a] witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. [MRE 706(a).]
The court did not advise the parties that Zollar had made any findings until issuing its opinion on reconsideration and never informed the parties of their substance and content. Zollar was not subject to cross-examination before the trial court (apparently) incorporated Zollar's opinions into its custody and parenting-time decision. Ultimately, it is unknown whether the trial court actually adopted Zollar's recommendations as she expressed them. This possibility buttresses my belief that the trial court's procedure violated MRE 706.
The Code of Judicial Conduct does not preclude all ex parte communications with witnesses. However, it requires that a judge who elects to “obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge” provide “notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.” Code of Judicial Conduct, Canon 3(A)(4)(b). This exception to the general rule barring ex parte communications comes closest to addressing what occurred in this case. Here, the trial court consulted Zollar regarding expert opinion rather than “the law.” And the trial court failed to afford advance notice of Zollar's participation in this stage of the proceedings, or the substance of her recommendations, to the parties. The report's absence from the record precludes this Court's review of the trial court's interpretation of Zollar's recommendations. I find the trial court's procedure in this highly contested custody case deeply troubling.
The majority, however, shrugs off any claim that the Petlicks suffered a violation of their rights, summarily stating that “[t]he Confrontation Clause does not apply to civil proceedings.” I am not reassured. The right to confront and cross-examine witnesses “is implicit in our historical concepts of due process and of fair trial[.]” Durant v. Stahlin, 375 Mich. 628, 649, 135 N.W.2d 392 (1965). In Hayes v. Coleman, 338 Mich. 371, 380–381, 61 N.W.2d 634 (1953), our Supreme Court favorably quoted the following language from a Missouri case, Gurley v. St. Louis Transit Co., 259 S.W. 895 (Mo.App., 1924):
The right of a litigant to cross-examine an adverse witness within proper bounds is an absolute right, and it is not within the discretion of the court to say whether or not the right will be accorded. The right of cross-examination is regarded of such consequence that it is made one of the chief grounds for the exclusion of hearsay evidence. If the right to cross-examine an adverse witness be denied or unduly limited or restrained, the testimony given by the witness would, in a very marked degree, partake of the character of hearsay testimony. It is always permissible upon the cross-examination of an adverse witness to draw from him any fact or circumstance that may tend to show his relations with, feelings toward, bias or prejudice for or against, either party, or that may disclose a motive to injure the one party or to befriend or favor the other. The party producing a witness may not shield him from such proper cross-examination for the reason that the facts thus elicited may not be competent upon the merits of the cause.
The majority concedes that it would have been “better practice to have received [Zollar's] report before the conclusion of proofs at trial, and to have included that report in the trial court record[.]” Yes, it would. But the majority's casual observation misses the point. “Cross-examination is a critical element in the truth-determining process.” Brock v. Roadway Express, Inc., 481 U.S. 252, 276, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987). It enhances the quality and the reliability of the decision-making process. The Petlicks had no opportunity to challenge and to test Zollar's opinions in a manner that would potentially influence the trial court's decision-making process. Whether Zollar once served as the Petlicks' expert witness is of no moment, given that she later provided crucial information to the trial court in a manner that can only be described as secret. Her opinions and recommendations may have been incomplete or misleading or based on improper criteria. The majority is satisfied with remaining in the dark. In my view, MP's best interests demand an airing.
Zollar's opinions and recommendations are not matters of national security. They guided the Friend of the Court's parenting time recommendations and the trial court's orders, and the majority has proposed no logical basis for excluding those opinions from effective and adversarial dissection. I would hold that the trial court clearly erred by denying the Petlicks an opportunity to review Zollar's report and to cross-examine her before issuing its custody and parenting-time decisions.
In urging remand to the trial court, I concede that proceeding according to the well-established rules governing custody and parenting-time determinations risks once again destabilizing MP. But in my view, the trial court's failure to hold an evidentiary hearing and its consideration of ex parte evidence contaminated its best-interest findings relevant to custody and parenting time. I have no confidence that MP's best interests have been served by the court's order, because I have no means of understanding its evidentiary foundations. Because the trial denied MP and Cassidie the most rudimentary form of due process, its decisions lack inherent integrity and must not stand affirmed.