Eldred v. Ziny, ____Mich App____(2001) (Court of Appeals No. 229230, May 22, 2001)
Domestic Relations ReviewStanley Ziny appealed an order that granted custody of his daughter, Harley, to her maternal grandmother, Colleen Eldred. Harley’s mother and Mr. Ziny never married, but did sign an acknowledgement of parentage the day after Harley was born. Mr. Ziny was ordered to pay support when Harley was less than one year old. Harley lived with her mother until she was almost three, when her mother died in an auto accident. Harley then lived with Mr. Ziny but routinely stayed with the maternal grandparents. In 2000 Mrs. Eldred was granted intervener status in the support action and filed a third-party custody petition. Hearings eventually resulted in a finding that Mr. Ziny was unfit to have custody and a grant of sole legal and physical custody to Mrs. Eldred. Mr. Ziny appealed.
The Court of Appeals agreed with the trial court’s conclusion that Mrs. Eldred did have standing to petition for custody, citing MCL 722.26(C)(1)(b), which provides that a third party has standing to seek custody if all the following conditions are met: “(i) The child’s biological parents have never been married to one another; (ii) The child’s parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under court order; (iii) The third person is related to the child within the fifth degree by marriage, blood, or adoption.” The Court of Appeals did not agree with Mr. Ziny’s argument that he was the custodial parent:
“As the trial court observed, pursuant to the Acknowledgment of Parentage Act, the mother. . . had legal custody of Harley when she died, thereby satisfying the first requirement of MCL 722.26(C)(1)(b)(ii), that the ‘parent who has custody of the child has died or is missing.” Mr. Ziny argues that this requirement relates to his taking physical custody of Harley after . . . [the mother’s] death and asserts that he must die or disappear for a third party to challenge his custodial rights. This is a misreading of the statute. The statute clearly states that the death or disappearance refers to the custodial parent, here. . . [the mother] who had custody of Harley until she died, and the second part, referring to the ‘other parent’ applies to Mr. Ziny, the noncustodial, living parent. Indeed, the statute obviously applies to precisely the situation here: the custodial parent died and no order existed at the time establishing legal custody by the ‘other parent’, Mr. Ziny. . . . . Because no order granting Mr. Ziny custody of Harley existed when Colleen Eldred filed her petition, the requirements of the statute were met. . . .”Stanley Ziny also argued that he had custody rights through the Acknowledgment of Parentage Act. The Court of Appeals disagreed:
“Pursuant to the Acknowledgment of Parentage Act, a man is deemed the natural father of a child born out of wedlock if that man ‘joins with the mother of the child and acknowledges that child as his by completing a form that is an acknowledgment of parentage.’ Here, Mr. Ziny joined with . . . [the mother] in signing the acknowledgment shortly after Harley’s birth, and is thus presumed to be her natural father. Mr. Ziny asserts, however, that in addition to establishing him as the child’s natural father, this acknowledgment affords him ‘the same legal rights of a father as if the child were born in lawful wedlock,’ and that the Child custody Act’s requirement that he take additional steps to procure a court order specifically granting him custody of his child to prevent a third party from seeking custody clearly conflicts with those rights. This contention is without merit, and has no statutory support.The Court of Appeals also found that the facts supported the trial court’s conclusion that custody with the grandmother was in Harley’s best interest.“Mr. Ziny’s claim to the full rights of a father whose child is born in wedlock appears to be premised upon sec. 4 of the Acknowledgement of Parentage Act, MCL 722.1004. . . . A plain reading of sec. 4 reveals that, contrary to Mr. Ziny’s assertion, acknowledgment of paternity under MCL 722.1003 does not afford the father the same legal rights as a father whose child is born within a marriage, but rather, as noted above, merely entitles the parties to seek custody, support, or parenting time without the need to first obtain an order of filiation under the Paternity Act, MCL 722.711 . . . . Although MCL 722.1003 affords the child the full rights of a child born in wedlock, the statute does not grant a putative father who acknowledges paternity the same rights as father whose child is born in wedlock. . . . Accordingly, the trial court did not err in concluding that the statutes do not conflict regarding the establishment of Mr. Ziny’s custody rights and that the Child Custody Act controls the custodial issue here.”
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