Terry v. Affum, ___Mich App___(1999), #210862, #213582, 9-17-99
Domestic Relations ReviewClifford was born in 1991. His father, Mr. Terry, lived with the child's mother until a year before her death in 1997. They never married. After her death, Terry allowed Clifford to stay with the mother's surviving relatives (maternal aunts and uncle), who then refused to return the child. Eventually, Terry and mother's relatives stipulated in court to Terry's sole legal and physical custody of Clifford, but granted parenting time to the maternal relatives. All stipulated that this arrangement was in Clifford's best interests. Terry and his parents soon tried to set aside the parenting time order. After months of hearings in Circuit Court, Mr. Terry and the paternal grandparents appealed separate Circuit Court orders which granted mother's relatives visits with Clifford. The Court of Appeals previously reversed the visitation order, holding that MCL 722.26c; MSA 25.312(6c) "does not confer standing on third parties to seek parenting time." (See 233 Mich App 498). The Michigan Supreme Court affirmed the Court of Appeals findings on standing, but vacated the result and remanded for the Court of Appeals to consider whether this was an "appropriate case" to grant parenting time based on the child's best interests.
The Court of Appeals observed that MCL 722.27(1)(b); MSA 25.312(7)(1)(b) allows the Circuit Court to provide for parenting time by involved parties, grandparents, or others. The question now before the Court of Appeals was whether this section "should be applied . . . to uphold the . . . award of parenting time to defendants who otherwise are third parties without standing." For analogy, the Court of Appeals reviewed cases involving third party custody. This review disclosed that:
"Critically, none of the third parties had initiated the action that resulted in the circuit court's award of custody to them. This fact comports with what is clearly the threshold requirement of MCL 722.27(1); MSA 25.312(7)(1): that an existing custody dispute is properly before the circuit court. The second element common to . . . [the cases] is the fact that the circuit court's decisions. . . were made after hearings to determine the child's best interests." (Italics by COA)
On the facts of this case, the Court of Appeals found that a when Terry
and his parents started their actions to establish Terry's paternity, gain
custody, and set aside the earlier stipulated parenting time order, a "child
custody dispute" did exist.
"Therefore, while without standing to initiate a proceeding seeking
parenting time, by virtue of [Terry and his parents'] various actions,
. . [mother's relatives] are parties to a child custody dispute properly
before the circuit court. . . . Further . . . [under MCL 722.27(1)(c);
MSA 25.312(7)(1)(c)] 'the court shall not modify or amend its previous
judgments or orders. . . unless there is presented clear and convincing
evidence that it is in the best interest of the child.' . . . [O]nce [Terry
et al ] contested the earlier stipulation, a proper hearing and its correlative
finds were necessary to validate the repeated awards of parenting time."
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