IN RE PRESBERRY/JOHNSON MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of A.P. and B.J., Minors.
DEPARTMENT OF HUMAN SERVICES,
FOR PUBLICATION
May 5, 2009
9:00 a.m.
Petitioner-Appellee,
v
No. 286431
Juvenile Division
Wayne Circuit Court
LC No. 06-461948
HOLLY JOHNSON,
Respondent-Appellant,
Advance Sheets Version
and
GYSHAWN PRESBERRY and MICHAEL REID,
Respondents.
Before: Murphy, P.J., and K. F. Kelly and Donofrio, JJ.
K. F. KELLY, J.
In this child protective action initiated by the Department of Human Services (DHS or
petitioner), respondent-mother, Holly Johnson, appeals as of right the “custody” order entered by
Wayne Circuit Court Judge Jerome C. Cavanagh, assigned to the juvenile section of the family
division of the court,1 awarding the father, Michael Reid, joint legal custody and sole physical
custody of the minor child, B.J. Sole legal and physical custody of the minor child had
previously been awarded to Johnson by an earlier order entered in an active paternity action
between Johnson and Reid pending before Wayne Circuit Court Judge Arthur J. Lombard,
assigned to the domestic relations section of the family division.2
1
Child protective proceedings pending before the Wayne Circuit Court are heard in the Lincoln
Hall of Justice, located in the city of Detroit.
2
Domestic relations matters pending before the Wayne Circuit Court are heard in the Coleman
A. Young Municipal Center in the city of Detroit.
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The issue raised on appeal requires us to consider whether a trial court presiding over a
child protective proceeding, or juvenile case, may make determinations in related actions under
the Child Custody Act (CCA). We hold that a trial court that is part of a circuit court’s family
division under MCL 600.1011 presiding over a juvenile case has jurisdiction to address related
actions under the CCA consistent with MCL 600.1021 and MCL 600.1023, as well as local court
rules. We further hold that when exercising its jurisdiction, a trial court must abide by the
relevant procedural and substantive requirements of the CCA. Accordingly, we vacate the trial
court’s “custody” order entered in the child protective proceedings and remand for further
proceedings.
I. Facts and Procedural Background
Reid and Johnson had a child out of wedlock, B.J., who was born on March 3, 2004.
When Reid discovered Johnson was pregnant with B.J., Johnson and Reid separated. Reid saw
B.J. on only one occasion, for approximately 20 minutes, shortly after B.J.’s birth.
In October 2004, a paternity action was initiated in the Wayne Circuit Court, Johnson v
Reid, Docket Number 2004-462722-DP. This paternity action was assigned to Judge Lombard.
Reid admitted that he is B.J.’s father and signed an affidavit acknowledging paternity.3 Judge
Lombard entered a judgment of support and filiation granting Johnson sole legal and physical
custody of B.J. Reid was not granted any parenting time but was ordered to pay child support
and other related expenses.
Johnson also has another child, A.P., born on March 14, 1993, from a previous marriage
to Gyshawn Presberry. Johnson and Presberry divorced in 1997. The judgment of divorce
awarded Johnson legal and physical custody of A.P., permitted Presberry supervised parenting
time, and required Presberry to pay child support. Presberry, however, failed to pay child
support and at the time of these events had several warrants for his arrest because of his child
support arrearage.
A. Child Protective Services Petition and Trial
In April 2006, the DHS received a complaint that Johnson was physically abusing A.P.
A.P. allegedly had welts and her arms were bleeding. A.P. admitted that her mother frequently
beat her. Johnson, however, evaded DHS involvement by sending A.P. to Tennessee.
In December 2006, after A.P. had returned to Michigan, another complaint was filed
against Johnson. The DHS sought temporary wardship of both A.P. and B.J. in the case
currently on appeal. In the initial petition, it was alleged that Johnson had beaten A.P. and had
3
MCL 722.1003(1) provides: “If a child is born out of wedlock, a man is considered to be the
natural father of that child if the 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.” The
acknowledgement “establishes paternity, and . . . may be the basis for court ordered child
support, custody, or parenting time . . . .” MCL 722.1004.
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also allegedly left A.P., who was 12 or 13 years old at the time, to care for B.J. while Johnson
was gone from 4 p.m. to midnight. The petition noted that neither of the children’s fathers
sought custody of the children, sought to visit them, or provided assistance for the children’s
care. As a result, the children were removed from Johnson’s care on December 5, 2006, and
placed with relatives.4
A preliminary hearing on the petition was held on December 6, 2006, Referee Leslie
Graves5 presiding, during which the DHS indicated that it was unsafe to keep the children in
Johnson’s home. The court authorized the petition, continued the children’s placement with
relatives, and granted Johnson supervised parenting time at the agency. The matter was set for a
pretrial hearing before Referee David Perkins,6 which was held on January 16, 2007. A.P.’s
father did not attend the pretrial hearing. B.J.’s father, Reid, however, did attend this hearing and
was granted supervised parenting time at the agency.
Trial began before Referee Perkins on March 22, 2007, and continued on April 20, 2007,
and June 1, 2007. A.P. testified that the allegations of physical abuse were false and that
although her mother threatened to whip her for misbehaving, Johnson never did. According to
A.P., her father made false reports of child abuse in retaliation against Johnson for not permitting
him to see A.P. A.P. further indicated that allegations that her mother had hit her with a vacuum
cleaner cord, a belt, and a coat hanger and had left her alone with B.J. were false, but admitted
making these accusations to a protective services worker. Nonetheless, A.P. testified that her
mother “whooped” her “[l]ike how other kids get whippings” and further admitted that her
mother whipped her with a belt sometime around Thanksgiving 2006. A.P. also testified that
Johnson, on one occasion, had ordered her to strip down to her underwear and to lie down with
her arms and legs outstretched while Johnson hit her on the thighs with a belt.
Johnson’s mother, Judith Johnson, testified that she saw Johnson hit A.P. on two or three
occasions and that she thought Johnson was hitting A.P. too hard. She also saw bruises on A.P.’s
thighs that appeared to be “from some kind of cord . . . .” Johnson’s sister, Kristi Johnson,
testified that A.P. had told her that Johnson whipped her on numerous occasions using a vacuum
cleaner cord, an extension cord, or a belt and that Johnson had left A.P. alone with her brother
until midnight.
Reid, who had lived with Johnson for three months, testified that he had also witnessed
Johnson whip A.P. “uncontrollably” with a coat hanger and had also seen Johnson beat A.P. with
her hand and a belt. In addition, Reid admitted to having broken Johnson’s keyboard when Reid
and Johnson separated because Johnson had allegedly tried to prevent him from leaving the
apartment. As a result of this incident, Reid had pleaded guilty of malicious destruction of
4
A.P. was placed with her maternal grandparents, while B.J. was placed with his maternal uncle.
5
Referee Graves is assigned to the juvenile section of the Wayne Circuit Court’s family division.
6
Referee Perkins is assigned to the juvenile section of the Wayne Circuit Court’s family
division.
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property and was ordered to pay restitution. Reid denied having any other convictions, although
the DHS had documentation of prior convictions for domestic violence and carrying a concealed
weapon. He admitted that he had a child support arrearage for B.J., and for three other children
from other relationships as well, and that he had “dealt with the warrants for the child support.”
Reid testified that he had not seen B.J. because Johnson had prevented him from seeing his son.
Johnson acknowledged that she wrote to Reid in 2005, after B.J.’s birth, and told him that she
did not want him to have anything to do with B.J. Reid indicated that he was self-employed as a
handyman and that he had part-time jobs delivering flowers and pizza. A.P.’s father did not
attend the proceedings. At the end of the trial, the court assumed temporary jurisdiction over the
children, ordered that a parent-agency agreement be prepared, ordered that psychological and
psychiatric evaluations of Johnson, Presberry, and Reid be performed, and recommended
counseling.
B. July 2007 Dispositional Review Hearing
Subsequently, at the dispositional hearing on July 27, 2007,7 the parties entered into a
parent-agency agreement that included, among other requirements, obtaining suitable housing,
individual and family counseling, obtaining a legal source of income, and attending parent
education classes. Referee Perkins also ordered Johnson to undergo anger management and
domestic violence counseling. Reid was permitted unsupervised parenting time, including
overnights and weekends, while Johnson’s supervised parenting time at the agency was
reinstated.8 Between the trial and this dispositional hearing, Reid had not missed a single visit
with his son.
C. October 2007 Permanency Planning Hearing
On October 24, 2007, a permanency planning hearing was held. The foster care worker
assigned to the case, Khaleelah Dawson, testified that Reid was in full compliance with the
parenting time schedule, had completed a psychological evaluation, and had recently been
assigned an individual counselor but had not yet started counseling. Dawson reported that his
unsupervised weekend visits with B.J. had been going well and that B.J. had indicated to her that
he would like to stay with Reid. Dawson also indicated that B.J. “[got] along well” with Reid’s
other two children, who visited during the weekends and over the summer. Reid lived alone in
his own home, and Dawson indicated that the previous caseworker had been out to the house and
found it appropriate. Dawson recommended that B.J. be placed with Reid with in-home services
specifically directed at social and educational resources on parenting.
7
By the time of this dispositional hearing, A.P. was no longer staying with relatives but had been
placed in a juvenile detention center as a result of pending criminal charges. These charges were
eventually dismissed, and A.P. then began residing with her maternal grandparents again.
8
It had been discovered that Johnson did not visit B.J. according to the court’s orders and
allegedly saw B.J. every Sunday without supervision. As a result of her actions, Johnson’s
visitation with B.J. had been suspended as of the date of this dispositional hearing.
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With respect to Johnson, Dawson testified that Johnson was attending individual
counseling. Dawson, however, commented that Johnson continued to deny any type of physical
abuse and thus recommended individual psychotherapy. Dawson reported that Johnson had
attended the domestic violence and substance abuse assessments, as well as parenting classes,
but had failed to take any of the random drug screens ordered. Johnson had not yet completed a
psychiatric evaluation. Further, although Johnson was permitted weekly supervised visitation at
the agency, she had only visited twice since the previous dispositional hearing in July 2007.
Dawson testified that Johnson had insisted on weekend visits, which were not available at the
agency, and that Johnson had not made arrangements to visit during the week despite the
agency’s efforts to make accommodations. Johnson had informed Dawson that she worked
during the day and would not be able to make nighttime visits during the week. Nonetheless,
Johnson had failed to submit to Dawson a work schedule or pay stubs, despite Dawson’s
repeated requests, and Dawson had not been able to verify Johnson’s employment. Dawson also
indicated that Johnson lacked stable housing because she had moved twice in the previous 90
days. At the end of the hearing, the referee ordered that the children remain temporary wards of
the court and continued the previous orders, including one requiring psychotherapy for Johnson.
D. January 2008 Dispositional Review Hearing
A dispositional review hearing followed on January 10, 2008. Dawson testified that
Johnson was in partial compliance with her treatment plan. Johnson had started attending
supervised visits with the children on a regular basis, participated in a clinic for “child study,”
and completed the psychological evaluation. However, Dawson had not yet received the results
of the psychiatric evaluation, and Johnson had remained reluctant to accept responsibility for the
physical abuse, although her therapist reported that she was beginning to accept responsibility.
Johnson had also failed to complete the random drug screens, but Dawson did not believe
Johnson was using any illicit substances. Dawson agreed to omit the drug screen requirement
unless Johnson showed signs of drug use. Dawson recommended that Johnson be allowed to
have some unsupervised day visits, at Dawson’s discretion, contingent upon continued
compliance with the court’s orders. Dawson noted that Johnson did not have suitable housing
and that she had referred Johnson to housing assistance. The court report Dawson submitted
indicated that during visitation Dawson had to “redirect” Johnson on two separate occasions
when Johnson spoke negatively about the children’s respective fathers in the children’s presence
and acted hostilely toward her own parents after parenting time had ended.
Dawson further testified that Reid was in complete compliance with the treatment plan
and had done everything the court had asked of him. Reid had actively participated in therapy,
and his weekend-long unsupervised visits continued to go well. Dawson had also visited Reid’s
home and reported that it was suitable. Dawson recommended that B.J. be placed with Reid
once in-home services and a suitable day-care plan were in place. Reid had already begun
arranging day-care plans with family members.
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At the end of this hearing, the court ordered petitioner to place B.J. with Reid because it
determined that it was unnecessary to wait for in-home services to begin.9 The court
acknowledged that Reid intended to move for a change of custody of B.J., but explained that
custody is a separate issue and that its order for placement did not substitute for, or obviate the
need to file, a motion for change of custody. The court also adopted Dawson’s recommendation
that Johnson be given unsupervised day visits with her children at Dawson’s discretion. The
children continued to be wards of the court.
E. May 2008 Motion for Custody
Subsequently, Reid moved for sole custody of B.J. However, the motion for change of
custody was not filed in the paternity action before Judge Lombard, in which the original custody
order had been entered, but was filed in the juvenile case pending before Referee Perkins.10 It
was noticed to be heard on May 12, 2008, the same day as the next dispositional review hearing
and permanency planning hearing. Because of the change of custody motion, Referee Perkins
transferred the case to the docket of Judge Cavanagh.11
At the outset of the hearing, petitioner asked the court to address the change of custody
motion before conducting the dispositional hearing, and the court agreed. Reid argued that he
was entitled to custody because he had completely complied with the treatment plan. Johnson
objected to the motion for custody generally and to an award of sole legal custody specifically.
Johnson also sought custody of B.J. While she argued that she had made progress on her
treatment plan and had had trouble with petitioner’s caseworker, she failed to articulate a specific
objection to a change of physical custody. The attorney appointed for the child argued that
Johnson should not be given custody as she had concerns that B.J. would be at risk if placed in
Johnson’s home because Johnson had physically abused A.P. and directed the court’s attention to
the exhaustive material in both the legal and confidential file.12 The child’s attorney did not
object to Reid’s obtaining sole physical custody of B.J., with joint legal custody for both parents.
Petitioner’s attorney stated that the DHS was “not really a party to this case” and did not object
to the motion for custody going forward.
9
If a court determines that the “return of the child to his or her parent would not cause a
substantial risk of harm to the child’s life, physical health, or mental well-being, the court shall
order the child be returned to his or her parent.” MCL 712A.19a(5).
10
The motion was captioned with the case name and docket number of the child protective
proceedings. Further, it is unclear from the lower court record whether Reid was asking for joint
legal custody or sole legal custody. Reid’s motion simply sought “sole custody” of the child.
11
Wayne Circuit Court family division referees assigned to the juvenile section do not hear
custody motions, but it is unclear from the record if that is because of a specific prohibition or
simply local practice.
12
In child protection actions, the legal file is a record of all the court proceedings, while the
confidential file contains information concerning the parents’ treatment plans and related
documentation. The confidential file is not available to the general public.
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After hearing the parties’ arguments, the trial court stated: “Okay. After considering the
motion the Court’s going to grant joint legal custody to mother and father and sole physical
custody to Mr. Reid . . . .” Before proceeding with the juvenile case, the court indicated that it
would consider Johnson’s testimony with regard to the motion for custody.
The court then conducted the dispositional review and permanency planning hearings. At
the outset, the trial court admitted evidence petitioner presented, including extensive
documentation of the parties’ psychological evaluations and related reports prepared by the
DHS. During the hearing Dawson testified that Reid had completed his treatment plan, that she
could offer him no other services, and that she had no objections to B.J.’s staying in Reid’s
home. Dawson believed that it was in B.J.’s best interests to be in Reid’s physical custody and
that upon entry of a custody order, the trial court should dismiss its jurisdiction over B.J.
Dawson also testified that Johnson’s individual therapy had been terminated because of
lack of attendance. Dawson indicated that Johnson still did not believe that she had done
anything wrong and “blame[d] others for her problems.” According to Dawson, Johnson’s
therapist wanted Johnson to re-enroll for more therapy to work on this problem. Johnson’s
visitation had also reverted to supervised visits at the agency because Johnson had failed to
return B.J. to the agency after an unsupervised Saturday visit and kept him for an entire
weekend. Dawson recommended that the current order with respect to Johnson’s visitation
rights, which included unsupervised visitation at Dawson’s discretion, be continued. Dawson
testified that she was unable to verify Johnson’s housing or employment. Initially, Johnson had
told Dawson that she was living with a friend but did not want Dawson to come out and view the
home because she would not be living there with her children. Dawson did not conduct a home
assessment and was informed on the day of the hearing that Johnson had allegedly found a new
home.
As part of this hearing, Dawson’s May 8, 2008, court report was admitted into evidence.
The report indicated that Johnson had completed the parenting classes and domestic violence
classes. The report also noted that Johnson’s individual therapy had been terminated as of May
6, 2008, because Johnson’s last session had been scheduled for March 8, 2008, and the
therapist’s attempts to re-engage Johnson had failed. The report further stated that Johnson had
written numerous complaints to petitioner indicating that “she was innocent of all allegations and
that she was the victim.” Dawson indicated in the report that Johnson had been unavailable to
plan for reunification. Dawson’s attempts to speak with Johnson had been unsuccessful because
when Dawson attempted to communicate with Johnson, Johnson would state that someone else
was servicing her case.
Dawson testified that she and Johnson had experienced a
“communication barrier” and that, as a result of Johnson’s complaints, the case was about to be
transferred to a different foster care worker.
Johnson testified that she had completed parenting classes and that she had completed
therapy. According to Johnson, neither her therapist nor Dawson had told her she needed to
continue therapy, but she testified that she would continue to attend sessions. Johnson also
testified that she had notified the agency that she had new housing, but had not notified Dawson
because there was always a “tussle/tussle” when she tried to talk to Dawson. Johnson admitted
that she had filed three other complaints against different DHS employees.
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After hearing this testimony, the court stated:
The Court’s jurisdiction over [B.J.] is dismissed. Wardship’s terminated. The
Court finds reasonable efforts have been made to preserve and unify the family.
Progress towards that goal and the goal of reunification have been made.[13]
The trial court continued Johnson’s parenting classes and individual therapy sessions.
Subsequently, the trial court entered a single order under the juvenile case number dismissing the
court’s jurisdiction over B.J., terminating its wardship over him, and awarding Reid sole physical
custody and Reid and Johnson joint legal custody of B.J. This appeal followed.14
II. Standards of Review
Three standards of review are relevant to our review of a trial court’s decision on a
motion for change of custody. The trial court’s factual findings are reviewed under the great
weight of the evidence standard. McIntosh v McIntosh, 282 Mich App 471, 474 ; ___ NW2d ___
(2009). The court’s factual findings are against the great weight of the evidence if the evidence
clearly preponderates in the opposite direction. Berger v Berger, 277 Mich App 700, 705; 747
NW2d 336 (2008). We review for an abuse of discretion the trial court’s discretionary decisions,
such as the award of custody. Id. Questions of law in custody matters are reviewed for clear
legal error. Phillips v Jordan¸ 241 Mich App 17, 20; 641 NW2d 183 (2000). Clear legal error
exists when the trial court incorrectly chooses, interprets, or applies the law. Foskett v Foskett,
247 Mich App 1, 4-5; 634 NW2d 363 (2001). Further, whether the circuit court has jurisdiction
over both child protection actions and domestic relations matters is a question of law we review
de novo. See Berger, 277 Mich App at 702.
III. Applicable Law
Johnson argues that the trial court erred by failing to consider the best interests factors
enumerated in the CCA when it awarded custody of the minor child to Reid. Conversely,
petitioner and the attorney for the child characterize the trial court’s decision as a determination
under the juvenile code, meaning that no analysis of the best interests factors was appropriate or
even required. While we agree that the trial court erred in the manner in which it entered the
“custody” order, we find it necessary to first consider the applicable law governing this case.
A. Family Law’s Constitutional Dimension
In this case, there are two distinct and separate statutory schemes affecting the care and
custody of the minor child: the juvenile code and the CCA. Relevant to each of these statutory
schemes are the relative interests of the state, the parents, and the child in the child’s upbringing.
Generally, the state has no interest in the care, custody, and control of the child and has no
13
The trial court continued its wardship of A.P.
14
Reid, a respondent below, is not involved in this appeal.
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business interfering in the parent-child relationship. See Ryan v Ryan, 260 Mich App 315, 333;
677 NW2d 899 (2004). As a practical matter, the state is not equipped to supply a child with the
necessary care and direction that a parent is equipped to provide. Neither is it its place to do so,
as due process precludes a government from interfering with parents’ fundamental liberty
interest in making decisions regarding the care, custody, and control of their children absent a
compelling state interest. Troxel v Granville, 530 US 57, 65-66, 120 S Ct 2054; 147 L Ed 2d 49
(2000); DeRose v DeRose, 469 Mich 320, 328-329; 666 NW2d 636 (2003); Herbstman v Shiftan,
363 Mich 64, 67-68; 108 NW2d 869 (1961); Ryan, 260 Mich App at 333-334. Rather, it is the
parent’s duty, and fundamental right, to do what the state cannot—direct a child’s upbringing
and education and prepare that child for future obligations. Troxel, 530 US at 65-66. Similarly,
a child also has a due process liberty interest in his or her family life, In re Clausen, 442 Mich
648, 686; 502 NW2d 649 (1993), which includes having a fit parent, In re Anjoski, 283 Mich
App 41, 60-61 ; ___ NW2d ___ (2009); Herbstman, 363 Mich at 67-68. In other words, a child
has a “‘right to proper and necessary support; education as required by law; medical, surgical,
and other care necessary for his health, morals, or well-being . . . .’” Ryan, 260 Mich App at
333-334, quoting Herbstman, 363 Mich at 67. Thus, when a parent is fit and a child’s needs are
met, there is no reason for the state to interfere in a child’s life.
B. The Child Custody Act and the Juvenile Code
The state, however, may become involved in a child’s upbringing under certain limited
circumstances when a child’s welfare is affected. Ryan, 260 Mich App at 333. Under domestic
relations law, for example, certain actions implicate the state’s interest in the child’s welfare.
These include actions for child support, LME v ARS, 261 Mich App 273; 680 NW2d 902 (2004),
paternity actions, Sinicropi v Mazurek, 273 Mich App 149; 729 NW2d 256 (2006), and
dissolution of marriage, Harvey v Harvey, 470 Mich 186; 680 NW2d 835 (2004). If any of these
actions directly or incidentally involve the legal or physical custody of a child, the courts are
bound by the CCA in determining who should have physical and legal custody of a child. See
Sirovey v Campbell, 223 Mich App 59, 68; 565 NW2d 857 (1997). In making this
determination, the child’s best interests are of paramount importance, and the goal is to resolve a
custody dispute in a way that promotes the child’s best interests and welfare. Harvey, 470 Mich
at 192-193. Once a court enters a custody order, it cannot change the award of custody without
overcoming certain procedural safeguards. See, e.g., MCL 722.25(1); MCL 722.27. These
safeguards are in place for the stability of the child and are meant to protect against unwarranted
and disruptive changes of custody. Corporan v Henton, 282 Mich App 599, 603; ___ NW2d ___
(2009); Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003).
Similarly, the state may become involved in the parent-child relationship when a child’s
safety is threatened, for example, if the parent has abused or neglected the child or has
abandoned the child. The state’s involvement under these types of circumstances is governed by
the juvenile code, MCL 712A.1 et seq. A court presiding in juvenile proceedings obtains
jurisdiction over the matter once a petition is filed and the court has authorized the petition after
conducting a preliminary inquiry. MCL 712A.2; MCL 712A.11(1); see In re Jagers, 224 Mich
App 359, 361; 568 NW2d 837 (1997). Although the court has jurisdiction over the matter, the
child will not come under the court’s jurisdiction and become a ward of the court until the court
holds an adjudication on the merits of the allegations in the petition and finds by a preponderance
of evidence that there is factual support for permitting judicial intervention. In re AMB, 248
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Mich App 144, 176-177; 640 NW2d 262 (2001). Subsequently, the court can hold dispositional
review hearings and permanency planning hearings and enter orders governing the child’s care
and custody. Id. at 177; MCL 712A.18f(4). The goal of these proceedings is always
reunification of the family unit. See In re B & J, 279 Mich App 12, 18; 756 NW2d 234 (2008).
However, a conflict may arise concerning the care and custody of a child, as in this case,
where domestic relations law and juvenile law intersect. See In re Brown, 171 Mich App 674;
430 NW2d 746 (1988). Obviously, upon entry of a child custody order under the CCA, a child’s
parents, or other custodians, must abide by the terms of the custody order. However, once a
juvenile court assumes jurisdiction over a child and the child becomes a ward of the court under
the juvenile code, the juvenile court’s orders supersede all previous orders, including custody
orders entered by another court, even if inconsistent or contradictory. MCR 3.205(C); see
Krajeweski v Krajewski, 420 Mich 729, 734-735; 362 NW2d 230 (1984). In other words, the
previous custody orders affecting the minor become dormant, in a metaphoric sense, during the
pendency of the juvenile proceedings, but when the juvenile court dismisses its jurisdiction over
the child, all those previous custody orders continue to remain in full force and effect. This is
necessarily the result because the prior domestic relations court never relinquished its jurisdiction
over the custody dispute, as the CCA vests a court with continuing jurisdiction over the matter,
Harvey, 470 Mich at 192, nor was the prior court required to relinquish or waive its jurisdiction
in order for the juvenile court to exercise its jurisdiction, Krajewski, 420 Mich at 734-735; MCR
3.205(A). In addition, the juvenile court’s orders function to supersede, rather than modify or
terminate, the custody orders while the juvenile matter is pending because the juvenile orders are
entered pursuant to a distinct statutory scheme that takes precedence over the CCA. See
Krajewski, 420 Mich at 734-735. We note that during the duration of the juvenile proceedings,
while the parties subject to the custody order can move to modify the custody order,15 any
modification would remain superseded by the juvenile court’s orders.
C. 1996 PA 388: “Family Court Plans”
Until very recently, only Michigan’s probate courts had original jurisdiction over all
juvenile cases. Const 1963, art 6, § 15, grants probate courts “original jurisdiction in all cases of
juvenile delinquents and dependents, except as otherwise provided by law.” However, 1996 PA
388, amending the Revised Judicature Act (RJA)16 by adding chapter 10, reorganized Michigan’s
court system by creating a family division within the circuit court, which assumed much of the
jurisdiction over juvenile cases formerly given to the probate courts. MCL 600.1001; MCL
600.1003; MCL 600.1021; see In re AMB, 248 Mich App at 167. It required each judicial circuit
to develop a “family court plan” under which the family division of each circuit has “sole and
exclusive jurisdiction” over, but not limited to, actions under the CCA, child protective actions,
and paternity actions. MCL 600.1011; MCL 600.1021. This reorganization, and the mandate
15
The DHS is currently required to provide noncustodial parents of children suspected of being
abused or neglected with forms on “how to change a custody order” after determining there is an
open “friend of court case” concerning the children. MCL 722.628(21).
16
1961 PA 236, MCL 600.101 et seq.
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that each judicial circuit create a family court plan tailored to its community’s needs, is intended
to “promote more efficient and effective services to families . . . .” MCL 600.1011(1). As part
of this goal, 1996 PA 388 added a provision intended to better serve families who face multiple
matters before different judges and encompasses the concept of “one judge, one family.” See
Saoud Hallmark, The new family division in Michigan, 76 Mich B J 956, 958 (1997).17 MCL
600.1023 provides:
When 2 or more matters within the jurisdiction of the family division of
circuit court involving members of the same family are pending in the same
judicial circuit, those matters, whenever practicable, shall be assigned to the judge
to whom the first such case was assigned.
And the act specifically gives a judge presiding over a juvenile matter the “power and authority”
to hear actions under the CCA. MCL 600.1021(3). Nonetheless, family division judges must
still abide by the procedural requirements incumbent upon them when hearing a custody matter
under the CCA or conducting proceedings under the juvenile code. See MCR 3.205.
The Wayne Circuit Court developed a family court plan that divided its family division
into a juvenile section and a domestic relations section, each of which is assigned particular
causes of action in part because the geographical distance between the Lincoln Hall of Justice
(where child protective proceedings are heard) and the Coleman A. Young Municipal Building
(where domestic relations matters are heard.) Wayne Circuit Court Administrative Order No.
1997-04; Wayne Circuit Court Administrative Order No. 1997-05. For example, the juvenile
section is assigned delinquency and abuse and neglect cases, whereas the domestic relations
section is assigned cases pertaining to divorce, paternity, support, custody, and emancipation of
minors. Each section, however, has the same authority and jurisdiction as the other section over
matters enumerated in MCL 600.1021.
The Wayne Circuit Court has also developed its own procedures to better serve families
who face multiple matters before different judges within its family division consistent with
MCL 600.1023: When a domestic relations dispute arises and a juvenile action involving the
same parties is already pending, or vice versa, one judge may resolve both matters if the judges
on the respective dockets confer and deem it appropriate. See AO 1997-04; AO 1997-05.
IV. Analysis
A. Jurisdiction and Authority
Petitioner and the child’s attorney mischaracterize the trial court’s decision to award
“custody” to Reid as a determination made under MCL 712A.19(1) of the juvenile code and
MCR 3.976. According to petitioner and the child’s attorney, the trial court was not required to
17
Linda Saoud Hallmark is now a judge of the Oakland County Probate Court assigned to the
family division of the Oakland Circuit Court.
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consider the best interests factors delineated in the CCA, as Johnson contends, because the court
was acting under the juvenile code. The attorney for the child further argues that the posture of
the case was such that the trial court was precluded from making a custody determination under
the CCA because Johnson was incapable of taking custody and application of the factors would
be “premature.” We disagree.
MCL 712A.19(1) provides, in relevant part:
Subject to [MCL 712A.20] if a child remains under the court’s
jurisdiction, a cause may be terminated or an order may be amended or
supplemented, within the authority granted to the court in [MCL 712A.18] at any
time as the court considers necessary and proper. An amended or supplemented
order shall be referred to as a “supplemental order of disposition”.
In other words, when a parent has successfully completed his or her treatment plan, and has
otherwise become a fit parent, it is appropriate for the court to terminate its jurisdiction over the
child. Similarly, MCR 3.976 provides courts with guidance regarding a child’s return to a parent
in proceedings under the juvenile code and states:
(A) Permanency Plan. At or before each permanency planning hearing,
the court must determine whether the agency has made reasonable efforts to
finalize the permanency plan. At the hearing, the court must review the
permanency plan for a child in foster care. The court must determine whether
and, if applicable, when:
(1) the child may be returned to the parent, guardian, or legal custodian[.]
*
*
*
(E) Determinations; Permanency Options.
(1) Determining Whether to Return Child Home. At the conclusion of a
permanency planning hearing, the court must order the child returned home unless
it determines that the return would cause a substantial risk of harm to the life, the
physical health, or the mental well-being of the child.
While it is true that Reid was granted “custody” of the minor child in an order captioned
as a juvenile court order and entered during a juvenile proceeding, petitioner and the children’s
attorney are incorrect to characterize the trial court’s determination as based on either of these
provisions. Rather, Reid specifically filed a motion for a change of custody, requesting that he
have sole custody of B.J. When the trial court granted the motion, it had not yet dismissed its
jurisdiction over the minor child pursuant to MCL 712A.19(1), nor had it conducted the
permanency planning hearing, as MCR 3.976 requires. Further, had the trial court dismissed its
jurisdiction over the minor child under MCL 712A.19(1) before it considered Reid’s motion for
custody, the minor child would have necessarily been returned to Johnson because the previous
custody order from the paternity action granted Johnson sole legal and sole physical custody.
MCR 3.205(C). The minor child, however, was permitted to remain in Reid’s care. Given these
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facts and the court’s explicit statement that it had considered the change of custody motion and
decided to grant Reid joint legal and sole physical custody of the minor child, it is unequivocal
that the court’s determination was based on the CCA and not the juvenile code.
Although the trial court erred in the manner in which it conducted the change of custody
hearing, as discussed later, we find nothing inherently wrong with the court’s exercising its
discretion to consider the merits of the motion. There is no authority to preclude a circuit judge
from determining custody pursuant to the CCA ancillary to making determinations under the
juvenile code, and neither petitioner nor the child’s attorney has identified any such authority.
To the contrary, the RJA, as amended by 1996 PA 388, specifically permits a judge presiding
over a juvenile matter to consider related actions under the CCA. Judge Cavanagh, a circuit
judge, was acting as a juvenile section judge. Pending before the court were three matters
involving the same family: a motion for change of custody, a dispositional review hearing, and a
permanency planning hearing. Because the juvenile section has the same authority and
jurisdiction as the domestic relations section, MCL 600.1021, we conclude that Reid’s motion
for custody, as well as the accompanying child protective action, were properly before the
court.18
We stress, however, that when a family division court deems it appropriate to consolidate
numerous matters concerning the same family that fall within the jurisdiction of the family
division under MCL 600.1021 but may have originally been assigned to different judges, it is
necessary that family division courts follow the procedural requirements incumbent upon them.
Here the trial court failed to require that the motion be captioned with the appropriate paternity
case name and number and, instead, proceeded to decide the motion for custody under the
juvenile case number. And the resultant custody order that the court entered was entered in the
same supplemental juvenile order rather than in the paternity action. This was error.
B. Custody Award
Turning to the substance of Johnson’s argument, we also agree that the trial court erred
by failing to consider the best interests factors before changing custody.
1. Threshold Finding and Burden of Persuasion
Under the CCA, if a child custody dispute has arisen, the circuit court may, in the best
interests of the child, modify its pervious orders or judgments “for proper cause shown or
because of change of circumstances . . . .” MCL 722.27(1)(c). Thus, the party seeking a change
18
There is no indication on the record showing that the procedures of AO 1997-04, AO 1997-05,
and MCL 600.1023 were not followed, and the parties do not contest whether these procedures
were followed. And, while MCL 600.1023 would indicate that the original judge who heard the
paternity action in 2004 should be assigned to the case, the lengthy juvenile proceedings and the
geographical separation of the juvenile and domestic relations sections of the Wayne Circuit
Court would make it impracticable to assign the matter to Judge Lombard’s docket in light of
Judge Cavanagh’s comparatively heightened familiarity with the current proceedings.
-13-
of custody must first establish proper cause or change of circumstances by a preponderance of
evidence. Vodvarka, 259 Mich App at 508-509. The movant must make this requisite showing
before the trial court determines the burden of persuasion to be applied and conducts the
evidentiary hearing. Id. at 509.
In determining the applicable burden of persuasion, the court must first determine whom
the custody dispute is between. If the dispute is between the parents, the presumption in favor of
the established custodial environment applies.19 MCL 722.27(1)(c) embodies this presumption
and provides:
(1) If 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:
*
*
*
(c) Modify or amend its previous judgments or orders for proper cause
shown or because of change of circumstances until the child reaches 18 years of
age and, subject to section 5b of the support and parenting time enforcement act,
1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of
age. 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.
As a threshold matter to determining which party will carry the burden of rebutting the
presumption by clear and convincing evidence, the court is required to look into the
circumstances of the case and determine whether an established custodial environment exists.
See Bowers v Bowers, 190 Mich App 51, 53-54; 475 NW2d 394 (1991). A child’s custodial
environment 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.” MCL
722.27(1)(c). In making this determination, a court must also consider the “age of the child, the
physical environment, and the inclination of the custodian and the child as to permanency of the
relationship . . . .” Id. If an established custodial environment exists with one parent and not the
other, then the noncustodial parent bears the burden of persuasion and must show by clear and
convincing evidence that a change in the custodial environment is in the child’s best interests.
Berger, 277 Mich App at 710. We note that in circumstances in which an established custodial
19
Alternatively, if the dispute is between a parent and a third party or agency, then the parental
presumption embodied in MCL 722.25(1) applies and “trumps” the established custodial
environment presumption. In re Anjoski, 283 Mich App at 54. In such instances, not relevant
here, it is not necessary for the trial court to make findings with respect to the existence of an
established custodial environment.
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environment exists with both parents, see Foskett, 247 Mich App at 8, the party seeking to
modify the custody arrangement bears the burden of rebutting the presumption in favor of the
custodial environment established with the other parent.
Once the court has determined the applicable burden, it must next determine whether a
change in the established custodial environment is in the child’s best interests. This analysis
involves a consideration of the best interests factors enumerated in MCL 722.23, which are:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.
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2. Application
In the present matter, the trial court, at petitioner’s request, first addressed Reid’s motion
for custody. We find no fault with the court’s decision to first consider Reid’s motion. After
hearing the parties’ arguments, however, the trial court, without making any of the required
findings, simply stated: “Okay. After considering the motion the Court’s going to grant joint
legal custody to mother and father and sole physical custody to Mr. Reid . . . .” We cannot
condone this conclusory award of custody and the manner in which the court reached its
decision, as it was plainly inconsistent with the procedural requirements of the act.
i. Threshold Determinations
First, consistently with the CCA, the trial court should have first determined whether
Reid had shown by a preponderance of evidence proper cause or change of circumstances.
Clearly a change of circumstances had occurred since the entry of the order of custody entered
by Judge Lombard in the paternity action: the minor child was removed from Johnson’s care and
custody in December 2006 and subsequently started living with Reid in January 2008. Reid was
considered to have completed his treatment program as of May 12, 2008, while Johnson was
then unable to independently undertake the care and custody of the children without state
oversight.
Next, because Reid met the requisite showing, the court should have articulated on the
record the applicable burden of persuasion. As discussed earlier, this determination requires a
consideration of both whom the dispute is between and, if it is between the parents, whether an
established custodial environment exists with either party. The trial court, however, did not
make any findings with respect to the existence of an established custodial environment, nor did
it articulate the applicable burden of persuasion. Here, because the dispute is between the
parents, the presumption in favor of the established custodial environment applies. MCL
722.27(1)(c).
To determine which party bears the burden of rebutting the presumption, the trial court
should have considered whether an established custodial environment existed with either Reid or
Johnson. Again, the court made no such finding. However, when there is sufficient information
in the record on this issue, we make our own determination of this issue by de novo review. Jack
v Jack, 239 Mich App 668, 670; 610 NW2d 231 (2000). The minor child has resided with Reid
since January 2008 and has enjoyed parenting time with Reid since December 2006. Before the
child began residing with Reid, the child indicated a desire to reside with Reid, and Reid’s
complete compliance with his treatment plan indicates a desire on Reid’s part to make his
relationship with the minor child permanent. Further, petitioner had consistently reported that
the parenting time had been going well and that the child looked to Reid for “guidance,
discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). Reid also resided in
his own home, which petitioner deemed appropriate for the child’s needs. In our view, these
facts were sufficient to establish the existence of an established custodial environment. As a
result, Johnson had the burden of showing by clear and convincing evidence that a change in the
established custodial environment was in the child’s best interests.
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ii. Best Interests Factors
This inquiry necessarily requires that a trial court consider the best interests factors
delineated in MCL 722.23. Johnson argues that the court’s failure to do so constitutes error
requiring a remand. We agree that the trial court erred and agree that a remand is necessary.
With respect to the best interests factors,
the finder of fact must state his or her factual findings and conclusions under each
best interest factor.
These findings and conclusions need not include
consideration of every piece of evidence entered and argument raised by the
parties. However, the record must be sufficient for this Court to determine
whether the evidence clearly preponderates against the trial court’s findings.
[McIntyre v McIntyre (On Remand), 267 Mich App 449, 452; 705 NW2d 144
(2005) (citations omitted).]
“Where a trial court fails to consider custody issues in accordance with the mandates set forth in
MCL 722.23 and make reviewable findings of fact, the proper remedy is to remand for a new
child custody hearing.” Rittershaus v Rittershaus, 273 Mich App 462, 475; 730 NW2d 262
(2007) (citations and quotation marks omitted). The scope of such a hearing is within the
discretion of the trial court on remand, but it must consider all the evidence and information
currently before it.
Here the trial court was faced with a fit father, an unfit mother, and the DHS. Because
Reid had become a fit parent, the compelling circumstances justifying petitioner’s initial
interference in the minor child’s life no longer existed and the state no longer had any interest or
right to intervene in Reid and B.J.’s enjoyment of their parent-child relationship, in which they
both have a fundamental liberty interest. See DeRose, 469 Mich at 328-329; In re Clausen, 442
Mich at 686; In re Anjoski; 283 Mich App at 54; Ryan, 260 Mich App at 333. We note that this
fundamental interest of a parent in the care and custody of his or her child extends to
noncustodial parents, like Reid, as “[t]here is no reason to conclude that a parent has a
diminished constitutional right to his child merely because he does not have physical custody of
that child.” In re Rood, 483 Mich 73, 121; 763 NW2d 587(2009) (opinion by CORRIGAN, J.). It
follows that the state “may not enter into agreements with an unfit custodial parent that may
compromise the state’s efforts to reunite the child with the noncustodial parent.” Id. at 86 n 11.
While it may appear that the competing and remaining interests of Reid and Johnson, a fit and an
unfit parent, are easily resolved when considered in conjunction with the child’s fundamental
liberty interest—it is undoubtedly in the child’s best interests to be in the care and control of the
fit parent—we cannot condone a conclusory award of custody, as was done in this case, given
the nature of the parents’ rights involved. In any matter involving a change of custody, there
must be reviewable indicia on the record showing that the court satisfied itself concerning the
best interests of the child. It is simply not enough to grant a change of custody motion without
making any findings of fact and merely sign an order. The trial court should have, at a
minimum, taken judicial notice of the confidential and legal file, taken any relevant testimony if
necessary, given its findings on the best interests factors of the CCA, and subsequently made its
custody determination in the paternity action.
-17-
Because the trial court failed to make any findings, we are prevented from determining
whether the underpinnings of the ultimate determination are against the great weight of the
evidence. We note that this is not for a lack of a sufficient evidentiary record. The record
contains a plethora of information, compiled during the ongoing juvenile proceedings since
2006, on which the court could have based its determination, including numerous psychological
evaluations and court reports regarding the parties’ progress, as well as the testimony of the
parties involved. But the trial court failed to refer to any of this information in support of its
custody determination. Thus, in the absence of a reviewable determination, we must remand for
the trial court to articulate factual findings consistent with the requirements of the CCA and
conduct a new evidentiary hearing as necessary to make its ultimate custody determination.
V. Conclusion
To conclude, our ruling in this case should be understood as clarifying the responsibilities
of family division courts exercising jurisdiction under MCL 600.1021 and presiding over
multiple matters controlled by different statutory schemes affecting a minor child. If a court
presiding over a juvenile proceeding finds itself in a position in which the matter before it has
been consolidated with a related custody matter, it must make clear that it is exercising
jurisdiction pursuant to chapter 10 of the RJA. Conversely, if a court presiding over a domestic
relations matter finds itself in a position in which the matter before it has been consolidated with
a juvenile matter, it must also make clear that it is exercising jurisdiction under chapter 10 of the
RJA. It is equally important that the court’s exercise of jurisdiction be consistent with relevant
local court rules. Once a court has made clear its jurisdictional authority, it must be cognizant of
which statutory scheme it is applying and must be mindful to put an indication on the record that
accurately reflects what is being done and how it is being accomplished. To this end, it is selfevident that family division courts considering consolidated matters must abide by the
procedures delineated in the statutory schemes affecting the parties.
In such instances, when one of the matters is a custody dispute, the court making the
custody decision must make the requisite threshold determinations and then support its ultimate
determination on the record by considering and making findings with respect to the best interests
factors. While it was not necessary for the trial court to undertake a lengthy and intensive
examination of the best interests factors under the unique circumstances of this case, we caution
lower courts finding themselves in a similar procedural posture that there must be some indicia
on the record showing that the court has satisfied itself that its determination is in the child’s best
interests. Harvey, 470 Mich at 192-193. We cannot stress the importance of this imperative
enough. This requirement is necessary not only for preserving an adequate record for appellate
review, see People v Petty, 469 Mich 108, 117-118; 665 NW2d 443 (2003), but is also essential
for the protection of the fundamental rights of the parties involved. Because the trial court here
did not abide by this requirement, a remand is necessary.
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Remanded for further proceedings consistent with this opinion.
jurisdiction.
We do not retain
/s/ Kirsten Frank Kelly
/s/ William B. Murphy
/s/ Pat M. Donofrio
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