VERMONT UPHOLDS RIGHT OF NON-BIOLOGICAL MOTHER TO HAVE CUSTODY, OTHER MOTHER RUNS.
The case Lisa Miller biological mother on the run , reviewed by Flint Divorce Attorney Terry Bankert ,as Vermont upholds custody order to lesbian non-biological mother. This is followed by a presentation of 3rdy Party Standing in Michigan by Flint Custody Lawyer Terry Bankert. (SEO)
The biological mother, Lisa Miller, became a Christian, gave up the lesbian lifestyle, and moved with her daughter to Virginia. But a 2009 order, which awarded sole custody of Isabella to non-biological mother … lesbian …Janet Jenkins, was upheld Monday by the Vermont Supreme Court.[3on 11/2/10]
Link to this posting
http://michiganchildcustody.blogspot.com/2010/11/vermont-continues-custody-woth-non.html
See earlier story
http://www.onenewsnow.com/Legal/Default.aspx?id=911768
Rights of Third Parties IN MICHIGAN FOLLOWS [1]
"According to the U.S. Supreme Court and other cases dealing with the constitutional rights of parents, you cannot have a third party intervene unless there is some significant showing of abandonment, abuse, or neglect," the Liberty Counsel founder explains. "And there's nothing like that in this case."[3]
In fact, the courts have admitted Miller is a fit mother. So according to those rulings, the former lesbian partner has no right to intervene. Staver is looking into the possibility of asking the U.S. Supreme Court to jump into the case and force the Vermont court to look at the constitutional issues.[3]
Meanwhile, Miller failed to bring the eight-year-old girl to a court-ordered custody swap in January, and the whereabouts of the two remain unknown.[3]
A. In General
PARENTAL PREFERENCE
§12.22 In every custody dispute involving the natural parent of a child and a third-person custodian, the strong presumption exists that parental custody serves the child’s best interests. Heltzel v Heltzel, 248 Mich App 1, 638 NW2d 123 (2001). The Heltzel court emphasized that to properly recognize the fundamental constitutional nature of the parental liberty interest, while at the same time maintaining the statutory focus on the child’s best interests, [1]
custody of a child should be awarded to a third-party custodian instead of the child’s natural parent only when the third person proves that all relevant factors, including the existence of an established custodial environment and all legislatively mandated best interest concerns … taken together clearly and convincingly demonstrate that the child’s best interests require placement with the third person. Only when such a clear and convincing showing is made should a trial court infringe the parent’s fundamental constitutional rights by awarding custody of the parent’s child to a third person.
Id. at 27–28. [1]
WHAT IF THERE IS A CONFLICT BETWEEN THE GUARDIAN AND A PARENT.
Here is what Georgia says.
Accordingly, that standard as found in OCGA § 29-2-8 (b) must be interpreted
to mean that the third party must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent [by terminating the temporary guardianship]. Once this showing is made, the third party must then show that [continuation of the temporary guardianship] will best promote the child's welfare and happiness.[3]
WITH FEW EXCEPTIONS 3 RD PARTY’S DO NOT HAVE RIGHTS TO STARTING CUSTODY ACTIONS
With some modest exceptions created by statute, see MCL 722.26b, .26c (discussed in this section and in §12.23), neither the Child Custody Act nor the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) nor the Divorce Act creates a separate child custody cause of action for third parties. In re Clausen, 442 Mich 648, 502 NW2d 649 (1993); Bowie v Arder, 441 Mich 23, 490 NW2d 568 (1992); Ruppel v Lesner, 421 Mich 559, 364 NW2d 665 (1984); Sirovey v Campbell, 223 Mich App 59, 565 NW2d 857 (1997) (construing MCL 552.17a).[1]
THERE ARE ALWAYS EXCEPTIONS LIKE THE VERMONT LESBIAN STEP MOM CASE
The Vermont Supreme Court has upheld a lower-court ruling that granted custody of an eight-year-old girl to her non-biological mother in a long-running lesbian custody case.[3]
WHO IS A THIRD PARTY
A third party is any person other than a child’s biological or adoptive parents. [1]
GRAND PARENT RIGHTS
In Ruppel, the Michigan Supreme Court concluded that the circuit court lacks the authority to enter an order giving custody to a third party (in this case, the grandparents) over the parents’ objection when the child is living with his or her parents, divorce or separate maintenance proceedings have not been instituted, and there has been no finding of parental unfitness. The court observed that
[w]hile custody may be awarded to grandparents or other third parties according to the best interests of the child in an appropriate case (typically involving divorce), nothing in the Child Custody Act, nor in any other authority of which we are aware, authorizes a nonparent to create a child custody “dispute” by simply filing a complaint in circuit court alleging that giving custody to the third party is in the “best interests of the child.”
Id. at 565–566. [1]
CAN THE COURT HEAR FROM A THRID PARTY? DO THEY HAVE STANDING?
Whether the circuit court may consider an original third-party action for a change of custody under the authority of the Child Custody Act was the source of conflict among panels of the court of appeals after the decision in Ruppel and before the supreme court’s later ruling in Bowie v Arder, 441 Mich 23, 490 NW2d 568 (1992). [1]
Many practitioners felt that Ruppel did not adequately deal with the situation in which a child is living with a third party with whom the child has forged a strong relationship. [1]
After Ruppel, several court of appeals panels dismissed original third-party custody complaints for lack of subject matter jurisdiction. See, e.g., Bowie v Arder, 190 Mich App 571, 476 NW2d 649 (1991), aff’d on other grounds, 441 Mich 23, 490 NW2d 568 (1992). In 1990 and 1991, some court of appeals panels construed Ruppel to allow custodial third parties to file original child custody actions, not ancillary to an already pending dispute. See, e.g., Duong v Hong, 191 Mich App 462, 478 NW2d 922 (1991), rev’d, 441 Mich 23, 490 NW2d 568 (1992) (child had lived with plaintiffs since infancy and parents had given plaintiffs legal custody of child). [1]
The Michigan Supreme Court addressed the conflict by granting leave in and consolidating Bowie and Duong. Bowie, 441 Mich 23, 490 NW2d 568 (1992). The court held that the circuit courts have subject matter jurisdiction over all custody claims, regardless of the identity of the party who initiates the action. [1]
3RD PARTY STANDING
The court also found that the determining factor in custody disputes involving third parties is the third party’s standing. [1]
GUARDIANS
The court ruled that a third party does not have standing to create a custody dispute not incidental to a divorce or separate maintenance proceeding unless that party is a guardian of the child or has a substantive right of entitlement to the custody of the child. [1]
WHAT WAS THE LEGISLATURE THINKING?
The court reasoned that the only third parties to which the legislature had specifically granted standing at the time of its decision were guardians and limited guardians pursuant to MCL 722.26b. In dicta, the court also stated that when parents of a child commence a custody action against third parties with whom their child resides or for the return of that child from a third party, there is then a bona fide dispute between the parties and the court could award custody to the third party. Consistent with the court’s view of third-party standing, it specifically overruled its prior decision in In re Weldon, 397 Mich 225, 244 NW2d 827 (1976), where the court had allowed a third party to initiate an action under the Child Custody Act. [1]
THIRD PARTY CANNOT START A CASE
The court also held that, when the third party commences the initial action with the consent of the natural parents, there is not a bona fide custody dispute, and the circuit court therefore lacks jurisdiction to enter an order awarding custody to the third party. The court reasoned that such voluntary transfers were within the then-exclusive jurisdiction of the probate court through guardianship proceedings. [1]
3RD PARTY MUST GET A GUARDIANSHIP THEN THEY CAN GET CUSTODY
As a result of the court’s decision in Bowie, practitioners may need to advise clients that to gain custody of a child who has been left in their care by a natural parent, if the clients are not already guardians and do not fall within the expanded categories of persons with standing under MCL 722.26c (discussed in §12.23), the third party must first initiate a guardianship proceeding pursuant to MCL 700.5204. [1]
CUSTODY OF GUARDIAN
If the clients are appointed as guardians, they then gain standing to initiate an action under MCL 722.26b of the Child Custody Act. Note that under MCL 722.26b, a full guardian has standing and a limited guardian has limited standing to bring an action for custody. [1]
PARENTAL RIGHTS TERMINATED?
In Newsome v Labby, 206 Mich App 434, 522 NW2d 872 (1994), the court stated that if a court has suspended parental rights over a child, the full guardians of that child have standing to bring an action for custody. This is true whether or not a reintegration plan has been instituted and the parents have substantially complied with the plan. Given the same circumstances, limited guardians would lose their standing. [1]
In Walterhouse v Ackley, 226 Mich App 67, 572 NW2d 243 (1997), rev’d, 459 Mich 924, 589 NW2d 780 (1998), the court of appeals reversed the trial court’s grant of custody to the child’s grandmother, who was a limited guardian. Her guardianship was created before the 1990 enactment of MCL 722.26b, and it was improper for the court to apply the statute retroactively. However, the supreme court reversed, noting that “the Legislature intended these new requirements to apply to guardianships already in place.” The supreme court found that the court of appeals had erred in failing to apply the 1990 version of section 6B of the Child Custody Act to a guardianship entered before the effective date of the statutory revisions. [1]
TEMPORARY GUARDIAN CAN BRING CUSTODY CATION
Due to the limitations on standing that limited guardians have, a client seeking to become a guardian to position himself or herself to bring a custody action should petition to become a full guardian, if possible. However, temporary guardians have the same authority as ordinary guardians to bring actions for custody. Kater v Brausen, 241 Mich App 606, 617 NW2d 40 (2000).
Some practitioners suggest that if a client who is a third party does not initiate guardianship proceedings and fails to voluntarily relinquish the child to the biological parents, the third party may request an award of custody if the biological parents subsequently commence a custody action against the client on the ground that a custody dispute would then be pending. Dicta in Ruppel and Bowie indicate that third parties may petition for custody when a dispute is already before the court. However, the supreme court specifically rejected that argument in In re Clausen, 442 Mich 648, 502 NW2d 649 (1993):
The [third parties] also argue that Bowie v Arder does not deny them standing. To begin with, they think that Bowie let stand statements in the lower court decision to the effect that “once judicial intervention has already taken place, the court may award custody to third parties.” Further, they see the only prohibition as being on the ability of a third party to create a custody dispute.
… .
We reject these arguments. … It is not enough that a person assert to be a “contestant” or “claim” a right to custody with respect to a child. If that were so, then any person could obtain standing by simply asserting a claim to custody, whether there was any legal basis for doing so or not. The Court of Appeals has correctly read our decision in Bowie as requiring the existence of some substantive right to custody of the child. We adhere to the holding of Bowie that a third party does not obtain such a substantive right by virtue of the child’s having resided with the third party.
442 Mich at 681–682 (citation omitted). [1]
A CASE BETWEEN THE PARENTS OPENS THE DOOR FOR A THIRD PARTY
Nevertheless, the court of appeals has, since Clausen, reached the conclusion that a pending custody case opens the door to third parties. Sirovey v Campbell, 223 Mich App 59, 565 NW2d 857 (1997). In that case, the court held that a third party lacks standing to initiate a petition for change of custody in a postjudgment proceeding but stated in dicta that when there is an existing custody dispute between parents, a grandparent or another third party may seek custody based on the “best interests of the child” factors. See also Kane v Anjoski (In re Anjoski), 283 Mich App 41, 770 NW2d 1 (2009), in which the widow of the custodial father could not initiate a custody action for the father’s child but could be awarded custody. But see Porter v Overton, 214 Mich App 95, 542 NW2d 288 (1995) (third party had no standing to assert any rights to children, even if she were viewed as party against whom custody action was brought).
Defenses to third-party claims are discussed in §§12.24–12.25.
SEE:
[1]
Michigan Family Law ch 12 (Hon. Marilyn J. Kelly et al eds, ICLE 6th ed 2004), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2004553510&chapter=12
(last updated 11/12/2010
[trb or cap’s] Terry R. Bankert 1000 Beach St., Flint MI 48503, 1-810-235-1970, http://attorneybankert.com/
[3]
http://www.onenewsnow.com/Legal/Default.aspx?id=1221724
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Monday, November 22, 2010
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