Third-party custody can occur when the biological parents are unwilling or incapable of providing care to their children and the court awards custody instead to someone else such as grandparents, stepparents, relatives or even friends who have a relationship with the child. For the third party, this is not an easy task because the law assumes that child should be in the care of their parents. In Michigan, “[i]f the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.” MCL 722.25(1).
Who can petition the circuit court for third-party custody of a child? Michigan’s Child Custody Act allows an action to be brought by any of the following persons:
- A third person with whom “the child was placed for adoption… under the adoption laws of this or another state, and the placement order is still in effect at the time the action is filed”, and “[a]fter the placement, the child has resided with the third person for a minimum of 6 months”. MCL 722.26c(1)(a).
- A third person where “[t]he child’s biological parents have never been married to one another”, “[t]he 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”, and “[t]he third person is related to the child within the fifth degree by marriage, blood, or adoption”. MCL 722.26c(1)(b).
- A guardian or limited guardian of a child appointed by the probate court. MCL 722.26b(1). However, “a limited guardian of a child does not have standing to bring an action for custody of the child if the parent or parents of the child have substantially complied with a limited guardianship placement plan regarding the child…”. MCL 722.26b(2). “Upon the filing of a child custody action brought by a child’s guardian or limited guardian, guardianship proceedings concerning that child in the probate court are stayed until disposition of the child custody action.” MCL 722.26b(4).
The Michigan Legislature has created strict categories limiting those third persons (any individual “other than a parent”) who have standing to file a custody action. In re Anjoski, 283 Mich App 41, 63; 770 NW2d 1 (2009). A third party does not have standing just because he or she lives with a child. Bowie v Arder, 441 Mich 23, 42; 490 NW2d 568 (1992). A third party cannot simply “create a custody dispute by simply filing a complaint in circuit court alleging that giving legal custody to the third party is in the child’s best interests” unless he or she fits into one of the statutory categories. Heltzel v Heltzel, 248 Mich App 1, 28-29; 638 NW2d 123 (2001).
However, even if a third party does not have standing to file for custody, he or she may still possibly be awarded custody. Anjoski, 283 Mich App at 62-63. Michigan’s Child Custody Act provides that “[i]f 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:”
- 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. MCL 722.27(1)(a).
- 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. MCL 722.27(1)(b).
- Take any other action considered to be necessary in a particular child custody dispute. MCL 722.27(1)(e).
As always, if there is a petition to change custody involving a parent and a third party, there is a strong presumption that awarding custody to the parent is in the child’s best interests. This presumption is based on parents’ fundamental due process liberty interest in the care, custody, and control of their children. Troxel v Granville, 530 U.S. 57, 65; 120 SCt 2054; 147 LEd2d 49 (2000). “There is no limiting language in the statute that conditions an award ‘to others’ to only those ‘others having standing.’ In re Anjoski, 283 Mich App at 62-63. “Rather, the statute’s sole limitation is that the award be in the child’s best interests, after weighing the parental presumption, applicable burdens of proof, and the statutory best interest factors.” Id at 63.
How is parental fitness evaluated? Courts are required to make a finding of parental fitness and should not disturb those rights unless there is a showing of unfitness, but what is the criteria to make this determination? The Michigan Supreme Court has not articulated a clear standard, but has consistently held that the bar is very high and the focus should turn on parental ability. Some criteria that courts should consider include, but are not limited to, “the ability or inability to provide: proper and necessary supervision and support; education as required by law; medical, surgical, and other care necessary for a child’s health, morals, or well-being; and a safe and suitable environment free from neglect, cruelty, drunkenness, criminality, or depravity.” Herbstman v Shiftan, 363 Mich 64, 67-68; 108 NW 2d 869 (1961). In addition, “a parent should be deemed unfit only after such an inquiry shows, by a preponderance of the evidence, that the parent is, in fact, currently unfit.” Anjoski, 283 Mich App at 55. A finding of unfitness in a custody proceeding may always be revisited, and “[t]hat a parent is once found unfit does not somehow bar him or her from resolving issues, becoming fit in the future, and seeking custody at a later time whereupon the parental presumption would again be applied. Id.
What if the third party has an established custodial environment with the minor child? Does this trump the ability of the parents to contest the third party for custody of their children? “The court shall not modify or amend its previous judgments or orders or 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). “The custodial environment of a child 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.” Id. The idea is that courts should be reluctant to change the child’s stable environment absent a significant showing of evidence. However, the Court of Appeals held that the established custodial environment presumption in MCL 722.27(1)(c) must yield to the parental presumption in MCL 722.25(1). Hunter v Hunter, 484 Mich 247, 279-280; 771 NW2d 694 (2009). This superior presumption does not require a threshold determination of parental fitness in custody cases. Once again, there is great deference provides to the parents to satisfy the constitutional requirements under Troxel.
If you are considering a custody action as a non-parent third-party, you need a skilled family law lawyer in your corner that can help you navigate the complex rules and overcome strong legal presumptions. It is very difficult to succeed in these suits on your own without legal counsel to guide you through the statutory and caselaw requirements. Contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today for a confidential consultation to evaluate the strength of your case and begin the fight for your legal rights.