ANGELA HOPE SCHANTZ V STANLEY ZINY
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STATE OF MICHIGAN
COURT OF APPEALS
COLLEEN ELDRED,
FOR PUBLICATION
May 22, 2001
9:00 a.m.
Intervenor-Plaintiff-Appellee,
v
No. 229230
Barry Circuit Court
LC No. 96-000142-DS
STANLEY ZINY,
Defendant-Appellant.
Updated Copy
August 3, 2001
Before: Saad, P.J., and Fitzgerald and O'Connell, JJ.
SAAD, P.J.
Defendant Stanley Ziny, natural father of Harley Ziny, appeals by leave granted from the
trial court's order that granted custody of Harley Ziny to her maternal grandmother, Colleen
Eldred. We affirm.
I. Facts and Proceedings
Angela Schantz gave birth to her daughter, Harley Ziny, on December 7, 1995. Though
they were not married at the time, Angela Schantz and defendant, Mr. Ziny, signed an
acknowledgment of parentage the day after Harley's birth. Because Harley lived with Angela
Schantz and apart from Mr. Ziny, the Barry County Prosecutor initiated a support action against
Mr. Ziny on March 5, 1996. Thereafter, Barry Circuit Court Judge James H. Fisher entered an
order directing Mr. Ziny to provide weekly support and maintenance payments for Harley's care.
As a result of an automobile accident, Angela Schantz died in November 1998.
Following her mother's death, Harley lived primarily with Mr. Ziny, but regularly stayed with her
maternal grandparents, including intervenor-plaintiff Colleen Eldred. On May 23, 2000, Judge
Fisher granted Colleen Eldred intervenor status in the March 1996 support action and, on the
same date, Colleen Eldred filed a third-party petition for custody of Harley. The Barry County
Friend of the Court held a conciliation conference on May 24, 2000, and, thereafter, the circuit
court entered an order that granted the father and grandmother joint legal custody, and transferred
physical custody of Harley to the grandmother, Colleen Eldred.
Mr. Ziny filed written objections to and moved to dismiss the order on June 19, 2000; he
argued that Colleen Eldred lacked standing to seek custody of Harley because she did not meet
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the requirements of § 6c of the Child Custody Act, MCL 722.26c. Mr. Ziny also asserted that
application of MCL 722.26c amounts to an unconstitutional infringement of his parental rights
pursuant to the United States Supreme Court's decision in Troxel v Granville, 530 US 57; 120 S
Ct 2054; 147 L Ed 2d 49 (2000).
Finding that Colleen Eldred established standing, the circuit court denied Mr. Ziny's
motion. Following an evidentiary hearing in July 2000, Judge Fisher found Mr. Ziny unfit to
provide care and custody for Harley and issued a written opinion and order granting sole legal
and physical custody of Harley to Colleen Eldred. Mr. Ziny appeals the order by leave granted.1
II. Analysis
A. A Third Party Has Standing to Seek Custody of a Child
Mr. Ziny erroneously argues that the trial court erred in ruling that Harley's grandmother,
Colleen Eldred, had standing to maintain a third-party action for custody pursuant to the Child
Custody Act.2
The Child Custody Act3 provides that a third person has standing to seek custody of a
child 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.
Here, Mr. Ziny does not dispute that the child's parents were never married, nor that
Colleen Eldred is related to Harley within the requisite degree. Rather, Mr. Ziny asserts that
because he took custody of Harley following her mother's death, Colleen Eldred could not meet
the statutory requirement of MCL 722.26c(1)(b)(ii), because Mr. Ziny was neither dead nor
1
As this Court stated in its order granting leave to appeal, Mr. Ziny "did not have an appeal of
right from the July 28, 2000 order because it was a postjudgment order, not a final order, and
although it affected the custody of a minor it was entered in a family support action, not a divorce
or paternity action. MCR 7.203(A)." Unpublished order of the Court of Appeals, entered
October 13, 2000 (Docket No. 229230).
2
MCL 722.21 et seq.
3
MCL 722.26c(1)(b).
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missing when Colleen Eldred filed her petition on April 28, 1999. This assertion is based on a
flawed and incomplete reading of the statute.4
As the trial court observed, pursuant to the Acknowledgment of Parentage Act,5 the
mother, Angela Schantz had legal custody of Harley when she died, thereby satisfying the first
requirement of MCL 722.26c(1)(b)(ii), that the "parent who has custody of the child dies or is
missing . . . ."6 Mr. Ziny argues that this requirement relates to his taking physical custody of
Harley after Angela Schantz' death and asserts that he must die or disappear before a third party
may 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, Angela Schantz, 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.7
Mr. Ziny's misinterpretation also fails to give effect to the language stating that standing
is proper if custody with the living parent has not been established "under court order."8 Because
no court order granting Mr. Ziny custody of Harley existed when Colleen Eldred filed her
petition, the requirements of the statute were met. Accordingly, we find no error in the trial
court's determination that the grandmother, Colleen Eldred, established standing to seek custody
of her grandchild under MCL 722.26c(1)(b).9
B. The Child Custody Act, Not the Acknowledgment of Parentage Act,
Establishes Mr. Ziny's Custody Rights
4
Statutory construction and the determination whether a party has legal standing are questions
of law that this Court reviews de novo. In re Complaint of MCTA, 241 Mich App 344, 360; 615
NW2d 255 (2000).
5
MCL 722.1001 et seq.
6
See MCL 722.1006 (providing that upon execution of an acknowledgment of parentage, "the
mother is presumed to have custody of the minor child").
7
It is well established that this Court "must apply the clear and unambiguous language of a
statute as written." Gumma v D & T Constr Co, 235 Mich App 210, 216; 597 NW2d 207 (1999).
8
MCL 722.26c(1)(b)(ii).
9
Mr. Ziny further argues, however, that the trial court did not have jurisdiction to award custody
to a third party because no bona fide custody dispute existed. We need not review this issue
because Mr. Ziny waived it by failing to raise it in his questions presented. Caldwell v Chapman,
240 Mich App 124, 132; 610 NW2d 264 (2000); MCR 7.212(C)(5). Nonetheless, we find Mr.
Ziny's contention without merit. Colleen Eldred's petition created a bona fide dispute regarding
the custody of Harley and the circuit court had jurisdiction over the matter. Further, as already
discussed, we find that Colleen Eldred had standing to petition for custody under the Child
Custody Act. Accordingly, Mr. Ziny's claim on this issue is without merit.
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Mr. Ziny says that the trial court erred in ruling that subsection 26c(1)(b) of the Child
Custody Act does not conflict with the Acknowledgment of Parentage Act with regard to
establishment of a father's custody rights. We find that the two statutes do not conflict.
Furthermore, the Child Custody Act is the "exclusive means" of pursuing child custody rights,
Van v Zahorik, 460 Mich 320, 328; 597 NW2d 15 (1999), whereas the Acknowledgment of
Parentage Act merely establishes paternity, establishes the rights of the child, and supplies a
"basis for court ordered child support, custody, or parenting time without further adjudication
under the paternity act . . . ."10
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 child by completing a form that is an acknowledgment of parentage."11 Here, Mr.
Ziny joined with Angela Schantz 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.
Mr. Ziny's claim to the full rights of a father whose child is born in wedlock appears to be
premised on § 4 of the Acknowledgment of Parentage Act, MCL 722.1004. A plain reading of §
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 et seq. Although MCL 722.1004 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 legal
rights as a father whose child is born in wedlock. See, e.g., Crego v Coleman, 463 Mich 248,
264; 615 NW2d 218 (2000). 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.
C. Best Interests Determination
Mr. Ziny also claims that the trial court abused its discretion in determining that awarding
custody to Colleen Eldred would be in the best interests of the child. Mr. Ziny contends,
incorrectly, that the trial court's findings regarding the statutory best interest factors12 were
10
11
12
MCL 722.1004.
MCL 722.1003.
MCL 722.23.
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against the great weight of the evidence. He also asserts, again incorrectly, that the court's
findings evince a judicial bias in favor of Colleen Eldred.
Initially, we note that Mr. Ziny has not properly presented this issue for appellate review.
In challenging the trial court's award of custody, Mr. Ziny offers only the general contention that
"[a] full reading of the transcript" will demonstrate that he is a "fit parent" and "excellent father."
Mr. Ziny offers no citation or discussion of the testimony presented at the two-day custody
hearing, or of the trial court's findings in relation to that testimony. It is well established that "[a]
party may not merely announce a position and leave it to this Court to discover and rationalize
the basis for the claim." In re Webb H Coe Marital & Residuary Trusts, 233 Mich App 525, 537;
593 NW2d 190 (1999). Indeed, this Court need not address an issue that is given only cursory
consideration by a party on appeal. Id.; see also Goolsby v Detroit, 419 Mich 651, 655, n 1; 358
NW2d 856 (1984).
Nonetheless, we find no error in the trial court's findings or decision. Above all, custody
disputes are to be resolved in the child's best interests. See Deel v Deel, 113 Mich App 556, 559;
317 NW2d 685 (1982). Generally, a trial court determines the best interests of the child by
weighing the twelve statutory factors outlined in MCL 722.23. However, in circumstances such
as those presented here, where the dispute is between a parent and a third person, the court must
presume that "the best interests of the child are served by awarding custody to the parent . . .
unless the contrary is established by clear and convincing evidence." MCL 722.25(1).
We are mindful of the seriousness of denying to an acknowledged father the custody of
his child in favor of a third party. The task must be approached with a thorough review of the
record and a careful application of the evidence to the best interest factors. Our review of the
record reveals that the trial court fully and conscientiously reviewed the evidence and applied the
best interest factors accordingly. We are also persuaded that the trial court properly concluded
that the best interest factors clearly favored Colleen Eldred and that Colleen Eldred rebutted the
presumption in favor of Mr. Ziny by clear and convincing evidence, specifically finding Mr. Ziny
unfit to care for Harley.
In evaluating the best interest factors and determining the evidence regarding Mr. Ziny's
unfitness as a parent, the trial court opined:
The fact that the defendant has three felony convictions of about (10) [sic]
years old would not justify such a finding of unfitness. The fact that the defendant
smokes marijuana regularly would not necessarily justify such a finding. The fact
that the defendant admittedly perjured himself would not justify such a finding,
nor would the defendant's admitted conversion of his daughter's settlement
proceeds.
Putting all of this together with the other evidence, however, compels the
court to find the defendant unfit, by clear and convincing evidence. He is a
convicted felon who still engages in felonious activities. He stole from his own
daughter, undoubtedly to pay child support for a former/current girlfriend. He lied
about it under oath, and undoubtedly defrauded the Kent County Probate Court.
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He has had his daughter living at numerous homes, one of the more recent being
the subject of a drug raid where the police found marijuana and paraphernalia in
the open all over the house, and several adults and small children inside. He had
marijuana in the bedroom he shared with this child and his then/current (?)
girlfriend. He pulled up at the drug raid with this child in his truck, and the police
found marijuana in the ashtray and on the floor.
His personal life and female relationships are nothing short of chaotic. . . .
It is little wonder why everyone reported that this child has a significant
problem with behavior. Her life with the defendant has been very chaotic.
The court acknowledged Mr. Ziny's emotional bond with Harley, but awarded custody to
Colleen Eldred after evaluating the evidence and the applicable twelve factors. The court
emphasized that its finding of unfitness was based on Mr. Ziny's inability to provide Harley with
adequate or appropriate housing, his failure to provide medical and dental care, the total lack of
stability and permanency while Harley lived with Mr. Ziny, the unsatisfactory home environment
Mr. Ziny provided, his conversion of Harley's money, and his possession and presumed
consumption of marijuana in Harley's presence.
The trial court's factual findings were not against the great weight of the evidence.
Indeed, the court's findings were supported by substantial and compelling evidence. Further, the
trial court properly found that Colleen Eldred overcame the presumption that Harley's best
interests would be served by awarding custody to Mr. Ziny by clear and convincing evidence.
Colleen Eldred provided Harley with a stable, permanent home and a healthy and secure
upbringing, qualities which Mr. Ziny was thoroughly unwilling or unable to provide his daughter.
Indeed, Mr. Ziny offered Harley no permanent home or family, he engaged in illegal and
dangerous activities in her presence, and he ultimately stole her money. We find no abuse of
discretion in the court's award of custody to Colleen Eldred.
We also find that Mr. Ziny's claim of judicial bias is without merit. To establish judicial
bias, Mr. Ziny must demonstrate that the trial court "'display[ed] a deep-seated favoritism or
antagonism that would make fair judgment impossible.'" See Cain v Dep't of Corrections, 451
Mich 470, 496; 548 NW2d 210 (1996) (citation omitted). However, with the exception of his
challenge to the ex parte order, Mr. Ziny has again failed to properly present his claim through
discussion and citations of the record showing some factual basis for his assertions. Goolsby,
supra at 655, n 1. Furthermore, our review of the record reveals that (1) the trial court
considered and addressed the issues raised by the parties, (2) there was ample evidence to support
the trial court's findings with regard to Mr. Ziny's criminal activity, and (3) the trial court
judiciously analyzed and properly took into account Mr. Ziny's lack of character. Contrary to Mr.
Ziny's allegation of bias, the record reflects that the trial court conducted the hearing fairly, and
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it's opinion and order demonstrate a thorough and impartial consideration of the evidence.13
Accordingly, Mr. Ziny has shown no bias and is not entitled to relief on this basis.
D. Constitutionality Claim
Mr. Ziny says, erroneously, that the trial court erred because it failed to address his claim
that the provisions of the Child Custody Act allowing for third-party custody actions are
unconstitutionally vague and overbroad under Troxel v Granville, supra.14 Perhaps Mr. Ziny and
his counsel overlooked the fact that the trial court addressed this claim, both at the June 20, 2000,
hearing on Mr. Ziny's motion to dismiss, and again in its July 28, 2000, written opinion.
Moreover, despite Mr. Ziny's apparent reassertion of this constitutional challenge on
appeal, he abandoned the issue by failing to offer any argument in support of his challenge. See
In re Coe Trusts, supra at 537. Rather, as he did below, Mr. Ziny merely asserts, in conclusory
terms, that the statute at issue is vague, overbroad, and grossly unjust in light of Troxel, supra.
Given the presumption of constitutionality afforded statutes,15 and considering Mr. Ziny's failure
to present any argument in support of his assertions, we decline to review his claim that the
provisions of the Child Custody Act affording third persons the ability to obtain custody of a
child are constitutionally infirm.16
Affirmed.
/s/ Henry William Saad
/s/ E. Thomas Fitzgerald
/s/ Peter D. O'Connell
13
With respect to the challenged order, Mr. Ziny has failed to show that the trial court's decision
evidenced a "'deep-seated favoritism or antagonism.'" Cain, supra at 496 (citation omitted).
Rather, as the trial court explained, it granted the order pursuant to the local practice of referring
the petition to conciliation, a mediation process, to unearth the relevant facts and to ensure
fairness to the parties.
14
We need not address whether the Supreme Court's essential findings in Troxel invalidate the
subsection of the Child Custody Act at issue in this case because (1) Mr. Ziny did not properly
present this issue for appeal and (2), most importantly, the trial court specifically found that Mr.
Ziny is unfit to care for Harley and that Colleen Eldred overcame the presumption that Mr. Ziny's
custody would be in Harley's best interests by clear and convincing evidence. Even in light of the
presumption that Mr. Ziny has a superior right to custody of this child, the facts of this case lead
us to conclude that the issues raised in Troxel are not implicated here; the trial court found, as do
we, that Mr. Ziny's criminal activities, drug use, theft of Harley's money, and his indifference to
Harley's health care render him clearly unfit to parent this child.
15
See Crego, supra at 260 ("statute[s] [are] presumed constitutional, and the party challenging
[them] bears a heavy burden of rebutting that presumption").
16
Mr. Ziny's request that he be granted attorney fees pursuant to MCL 722.26e is denied because
he did not make the required showing under the statute.
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