GARY HESSBROOK V SUE ANN (HESSBROOK) NAZARIOAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
July 10, 1998
Gratiot Circuit Court
LC No. 90-000862 DM
SUE ANN (HESSBROOK) NAZARIO,
Before: Fitzgerald, P.J., and Holbrook, Jr. and Cavanagh, JJ.
Appellant Mark Nazario appeals as of right from the trial court order denying his motion to
intervene and to set aside an ex parte order awarding custody of his two minor stepchildren to appellee
Gary Hessbrook, the children’s natural father. The trial court determined that appellant did not have
standing to intervene. We affirm.
During their marriage, appellee and Sue Ann Hessbrook (later Nazario) had two children,
Nicole and Derek. After the appellee and Sue Ann divorced in 1990, they shared legal custody of the
children, and Sue Ann received physical custody. Sue Ann married appellant in 1992. The children
resided with appellant and Sue Ann until the latter’s death in 1997. Appellee filed a petition for custody
of the children and obtained an ex parte custody order allowing him to remove the children from
appellant’s residence. Appellant and Nicole Hessbrook, then fifteen years old, filed an emergency
motion to set aside the ex parte order. The trial court found that neither appellant nor Nicole had
standing to intervene in this action.
Appellant first argues that the trial court erred in refusing to convene a hearing to determine
Nicole’s best interests. Whether a best interest determination was required in this case is a question of
law. In child custody cases, questions of law are reviewed for clear legal error. Fletcher v Fletcher,
447 Mich 871, 881; 526 NW2d 889 (1994).
The trial court refused to hold a hearing to determine Nicole’s best interests because it found
that appellant did not have standing to seek custody of Nicole. Appellant maintains, however, that
circuit courts have jurisdiction to enter orders regarding a child’s care, custody, and maintenance once a
divorce judgment has been entered and to grant custody to third parties, regardless of their standing to
file for relief. In addition, appellant points out that during the pendency of divorce proceedings, the trial
court may modify custody orders. See MCL 552.17(1); MSA 25.97(1).
We do not find appellant’s argument persuasive. While it is true that the trial court has
jurisdiction to enter orders regarding the minor’s care, custody and maintenance once a divorce
judgment has been entered, Bowie v Arder, 441 Mich 23, 38-39; 490 NW2d 568 (1992), appellant
fails to distinguish between subject matter jurisdiction and standing. The trial court cannot exercise its
jurisdiction until a person with standing initiates proceedings. Id. at 42-43.
A third party does not have standing to initiate a custody dispute unless the third party is a
guardian of the child or has a substantive right of entitlement to custody of the child, which occurs in
narrowly defined instances not applicable in this case.1 A third party cannot create a custody dispute by
simply filing a complaint in circuit court alleging that giving legal custody to the third party would be in
the best interests of the child. Id. at 48-49. A circuit court may award custody to a third party based
on a determination of the child's best interests in an appropriate divorce case filed by a party with
standing. Such appropriate proceedings include (1) the initial divorce proceeding during which custody
is at issue, and (2) a proceeding initiated by a parent’s petition for a change of custody. Sirovey v
Campbell, 223 Mich App 59, 81-82; 565 NW2d 857 (1997).
Appellant argues that appellee’s 1990 divorce was still legally pending until the youngest child
reached the age of majority, thereby entitling him to intervene. Although the trial court continued to have
jurisdiction over the children until the children reached the age of majority, the initial divorce proceeding
concluded with the entry of the judgment of divorce. The initial divorce proceeding did not create an
ongoing custody dispute in which a third party could intervene at any time until the youngest child
reached the age of majority. 2
Appellant next asserts that the filing of the petition for an ex parte custody order by appellee
constituted the initiation of an “appropriate” action in which he should have been permitted to intervene
and seek custody of Nicole on the basis of her best interests. We disagree. Although appellee
petitioned the court for an ex parte custody order, the petition did not create a divorce action nor seek a
change of custody. Because appellee was awarded joint legal custody in the original divorce action, he
received full custody upon the mother’s death. Consequently, the petition did not create an appropriate
proceeding during which the trial court could enter an order regarding Nicole’s custody pursuant to
MCL 552.15(1); MSA 25.95(1) or MCL 552.17(1); MSA 25.97(1).3
Appellant argues that the trial court erred when it refused to conduct a “best interests” hearing
before it ordered that Nicole be removed from an established custodial environment. We disagree.
Appellant cites no authority for the proposition that a best interests hearing must be held when no party
with standing has requested it, despite the existence of an established custodial relationship. Third
parties do not attain a legal right to custody on the basis that a child has lived with them.4 Bowie, supra
Appellant also argues that he is entitled to relief under the equitable parent doctrine. The
equitable parent doctrine allows a husband who is not the biological father of a child conceived during
the marriage to be considered the natural father if there is a mutually acknowledged father-child
relationship over time, the husband desires equitable parenthood, and he is willing to pay child support.
York v Morofsky, 225 Mich App 333, 336; 571 NW2d 524 (1997). Appellant did not raise this issue
in the trial court, and it is therefore not preserved for appellate review. See Brown v Michigan Bell
Telephone, Inc, 225 Mich App 617, 626; 572 NW2d 33 (1997). In any case, the doctrine is
inapplicable because the Hessbrook children were neither born nor conceived during appellant’s
marriage to Sue Ann.
Finally, appellant argues that this Court should broaden its interpretation of the Child Custody
Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., to allow a minor child of a sufficient age to express
a reasonable preference regarding her custody to obtain a best interests hearing. Appellant contends
that because of Nicole’s age of fifteen years and her obvious personal stake in the outcome of the
proceedings, she should be granted standing to file a petition to obtain such a hearing.
However, the Supreme Court has already rejected the argument that a minor child has the right
to bring a Child Custody Act action and obtain a best interests of the child hearing regarding her
custody. The Court stated:
We do not believe that the Child Custody Act can be read as authorizing such
an action. The act's consistent distinction between the “parties” and the “child” makes
clear that the act is intended to resolve disputes among adults seeking custody of the
The mutual rights of the parent and child come into conflict only when there is a
showing of parental unfitness. As we have held in a series of cases, the natural parent’s
right to custody is not to be disturbed absent such a showing, sometimes despite the
preferences of the child. [In re Clausen, 442 Mich 648, 686-687; 502 NW2d 649
(1993) (footnotes omitted).]
We note that, as a general rule, making social policy is a job for the Legislature, not the Courts.
The responsibility for drawing lines in a society as complex as ours-of identifying priorities, weighing the
relevant considerations, and choosing between competing alternatives-is the Legislature’s, not the
judiciary’s. Van v Zahorik, 227 Mich App 90, 95; 575 NW2d 566 (1997). Plaintiff’s argument that
minor children of sufficient age should have the right to obtain a best interests hearing regarding their
custody is therefore more appropriately addressed to the Legislature.
/s/ E. Thomas Fitzgerald
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
See MCL 722.26b; MSA 25.312(6b), MCL 722.26c; MSA 25.312(6c).
Rather, any subsequent custody dispute would commence with one of the parents filing a petition for a
change of custody.
Absent a finding of parental unfitness, a parent has the right to the custody of his or her children. In re
Clausen, 442 Mich 648, 687; 502 NW2d 649 (1993). Because appellee’s parental rights were
neither voluntarily surrendered nor legally terminated, after Sue Ann’s death sole legal and physical
custody vested in him because he w the only remaining person with parental rights. See, e.g.,
Weinberger v Wiesenfeld, 420 US 636; 95 S Ct 1225; 43 L Ed 2d 514, 527 (1975).
Appellant relies on Henrikson v Gable, 162 Mich App 248; 412 NW2d 702 (1987), and Rummelt
v Anderson, 196 Mich App 491; 493 NW2d 434 (1992). However, we find these cases
distinguishable because although appellant lived with the children for some years, he never had custody
of them; Sue Ann had physical custody, and after her death appellee promptly asserted his parental
rights. Appellant also relies on Stevenson v Stevenson, 74 Mich App 656, 659; 254 NW2d 337
(1977), where the defendant father was required to establish by clear and convincing evidence that a
proposed change in the child’s established custodial environment would be in the child’s best interests.
However, the issue in Stevenson was not custody but rather visitation rights. More importantly, neither
the Child Custody Act nor any other authority grants standing to create a custody dispute to a third
party who does not possess a substantive right to custody. Sirovey, supra at 863.