Michigan Court of Appeals Affirms Filiation, Custody, And Parenting Time Orders

On March 5th, 2015, the Michigan Court of Appeals affirmed in a family court case the trial court's orders regarding filiation, custody, and parenting time. The case involved a child, MP, born to a woman and a man shortly after they wed. The child's father was not the husband of the child's mother. The child's father and mother had intercourse during a brief lapse in the mother's relationship with her now-husband, resulting in the pregnancy and child at issue in the case. The father of the child sought to exercise his rights as the child's father, while the mother and her husband sought the opposite. 

In Demski v Petlick, Docket No. 322193, the Michigan Court of Appeals addressed several issues, including:

  1. whether the trial court "erred in entering an order determining paternity and an order of filiation in favor of plaintiff . . .";
  2. whether the trial court erred in "declining to conclude that an order determining that MP was born out of wedlock would not be in her best interests . . .";
  3. whether the trial court erred in awarding joint legal custody of MP to plaintiff and defendant;
  4. whether the trial court erred in awarding parenting time to plaintiff; and
  5. whether the trial court erred in admitting an expert witnesses report regarding MP's best interests.

The facts of the case recited by the Court are lengthy and involve a number of different episodes during a multi-year period. The following is a brief summary.

Defendant Jeffrey Petlick (“Jeffrey”) began a romantic relationship with Cassidie, f/k/a Cassidie Pointer, in 2006; that relationship ended in March 2010. Thereafter, Cassidie began a romantic relationship with plaintiff, in April 2010. That relationship lasted approximately 4-1/2 months, during which time plaintiff and Cassidie engaged in sexual relations. Jeffrey and Cassidie did not have sexual relations during the time period of Cassidie’s relationship with plaintiff.

In May 2010, Cassidie became pregnant. Plaintiff learned of the pregnancy in June 2010. Plaintiff testified that approximately three or four weeks later, he talked with Cassidie about getting married. In July 2010, while Cassidie was still in a relationship with plaintiff, Jeffrey learned that Cassidie was pregnant. Jeffrey acknowledged at trial that he always knew that the minor child was not his biological child and that plaintiff was the minor child’s biological father.

In early August 2010, Cassidie’s relationship with plaintiff ended, after which Cassidie and Jeffrey resumed their previous relationship. Plaintiff testified that he offered Cassidie financial and emotional assistance at that time, but that she rejected his help. Cassidie told plaintiff that he had no idea what it took to raise a child and that there was “no way” she was “going to hand her kid over to somebody like [plaintiff].” Plaintiff testified that he felt that Cassidie was pressuring him to back away from the situation . . .

Plaintiff obtained legal counsel who sent Cassidie a letter on January 13, 2011 indicating that plaintiff had retained counsel “in order to assist and facilitate his involvement with prenatal doctor’s appointments as well as the birth of your daughter” and to assist in establishing paternity “as well as an eventual custody and parenting time arrangement.” The letter also made reference to plaintiff’s desire to be present at the birth of the minor child. Cassidie did not contact plaintiff after she received the letter. Cassidie testified that she did not take the letter seriously, because five weeks earlier, plaintiff had told her that he wanted to sign away his rights. Plaintiff testified that at the beginning of January 2011, he saw Jeffrey at a gas station and tried to talk to him. Jeffrey told plaintiff to “stay the f--- away” and that he was a “f------ piece of s--- .”

On a date later in January 2011, at approximately 2:30 p.m. or 3:00 p.m., Cassidie’s water broke. At approximately 5:30 p.m. or 6:00 p.m. the same day, Jeffrey and Cassidie were married. At trial, Jeffrey testified that he and Cassidie had intended to get married on a date in February 2011, but altered this plan when it became apparent that the minor child would be born before that date. Jeffrey testified that they wanted to be married before the minor child was born so that the minor child would be born as a legitimate child into a family with a married mother and father. Cassidie testified that it was important not to have the minor child out of wedlock because she wanted to ensure that the child had a family. At approximately 7:00 p.m. on the date that Jeffrey and Cassidie were married, and while they were waiting for the minor child to be born, plaintiff arrived at the hospital and waited in the waiting room for approximately two or three hours before leaving.

The minor child, MP, was born the next day. On the day after the birth, Cassidie invited plaintiff to the hospital. Jeffrey testified that at that point he and Cassidie had decided that plaintiff could be involved in MP’s life. Plaintiff visited MP at that time and held her for four hours. Cassidie testified that while plaintiff was at the hospital, she told him to “[g]ive us a few days, let us get settled and we’ll get ahold of you.” According to plaintiff, Cassidie told him when he left the hospital that she would stay in contact with him. Plaintiff asked Cassidie to inform him of how MP’s first doctor visit went, but Cassidie did not contact him about the visit . . .

On July 5, 2012, plaintiff filed his complaint in this action. Plaintiff’s initial complaint, entitled “Complaint to Determine Parentage, Custody, Child Support, and Parenting Time” sought a declaration that he was MP’s father (although it did not cite the statutory basis for such a determination, i.e., the paternity act, MCL 722.711 et seq., or the revocation of paternity act (RPA), MCL 722.1431 et seq.), joint physical and joint legal custody of MP, and a child support determination. Plaintiff alleged that he believed that he was MP’s father, that Cassidie was denying his efforts to be involved in MP’s life, and that he could provide MP with a stable living environment. Cassidie answered, denying that plaintiff was MP’s father, that she had impeded plaintiff’s efforts to be involved with MP, and that plaintiff could provide MP with a stable living environment. On September 19, 2012, plaintiff amended his complaint to add Jeffrey as a defendant, alleging that Jeffrey was the “presumed father” of MP. Plaintiff also added to his requests for relief by asking the trial court, in addition to determining paternity, to enter an order of filiation1 naming him MP’s legal father.

On December 7, 2012, the parties agreed to cooperate with genetic testing. The results of the paternity test showed that there was a greater than 99.999 percent chance that plaintiff was MP’s father. The paternity test results were admitted at trial. The trial court commenced a bench trial on May 24, 2013. The parties testified to the events described above, and further presented testimony regarding the fitness of the parties and MP’s best interests. Throughout the trial, and from its inception, the trial court and counsel made repeated reference to the issues at trial encompassing paternity, custody, and parenting time . . . 

Robin Zollar, a child psychotherapist, was called as an expert witness by defendants. She testified that she first met with Cassidie, Jeffrey, and MP approximately three months before trial. Zollar met with Cassidie and Jeffrey individually, and with Cassidie, Jeffrey, and MP as a group. During the time Zollar observed MP with Cassidie and Jeffrey, MP called Cassidie “mommy” and Jeffrey “daddy,” and interacted with Cassidie and Jeffrey equally well. Zollar testified that MP viewed Jeffrey as her father and that MP and Jeffrey seemed to be genuinely comfortable and attached to each other.

Zollar testified that if plaintiff or any other father figure was brought into MP’s life, there was a danger that she would suffer frustration and anger because of her young age and inability to understand. Zollar also said that MP could become insecure, threatened, and confused. Zollar testified that the danger to MP was especially great if Cassidie and Jeffrey did not get along with plaintiff, because children the age of MP may believe that the problems of the adults are their fault. Zollar also testified that there was a danger that if a new parental figure was introduced into MP’s life, she might become alienated from Jeffrey. However, Zollar also acknowledged that introducing a new parent into MP’s life could also benefit her if the parent emotionally supported her for a sustained period of time.

On July 26, 2013, the trial court issued a ruling from the bench. The trial court noted that the issue before it was whether it should determine that MP was born out of wedlock under the RPA, MCL 722.1441, despite the fact that Jeffrey, having been married to Cassidie at the time of MP’s birth, was MP’s presumed father under MCL 722.1433(4). The trial court recognized that MCL 722.1443(4) allowed it to refuse to determine that a minor child was born out of wedlock, if such a determination would not be in the best interests of the child. After considering MP’s best interests, the trial court found by clear and convincing evidence that plaintiff was MP’s biological father and that she was born out of wedlock. Based on that finding, the trial court, on August 29, 2013, entered an order of filiation, determining paternity pursuant to MCL 722.1445. The trial court’s order also required that plaintiff meet with Zollar for a “concluding evaluation.” The trial court reserved the issues of child custody and parenting time until further order from the trial court. 

On February 4, 2014, the trial court entered an order awarding joint legal custody of MP to Cassidie and plaintiff, awarding sole physical custody to Cassidie, and granting parenting time to plaintiff. On February 18, 2014, Cassidie and Jeffrey moved the trial court for reconsideration on the ground that the trial court had entered a child custody and parenting time order without holding a separate evidentiary hearing and without making specific findings of fact concerning child custody and parenting time. Cassidie and Jeffrey asked the trial court to set aside its February 4, 2014 order and schedule an evidentiary hearing regarding custody and parenting time. In an order dated May 28, 2014, the trial court denied the motion, stating that because it had conducted a trial on May 24, 2013 and June 11, 2013 in regard to plaintiff’s complaint, which included claims for child custody and parenting time, it had fulfilled the requirement that an evidentiary hearing be held before the entry of an order regarding custody and parenting time. The trial court had further found that MP had an established custodial environment with Cassidie and had addressed the 12 best-interest factors for child custody under MCL 722.23. The trial court also had found that it was in MP’s best interests that Cassidie and plaintiff share joint legal custody, that Cassidie have sole physical custody, and that plaintiff receive parenting time.

This appeal followed.

The Court first addressed whether it was error for the trial court to enter orders of parentage and filiation in favor of plaintiff.

In this case, the record showed that Cassidie was not married at the time she conceived MP, and that this action was filed both within three years of MP’s birth and within one year of the effective date of the RPA. Accordingly, the elements of MCL 722.1441(3)(c) were met in this case. The parties do not dispute this on appeal. However, MCL 722.1441(3) indicates that the trial court “may” determine that the child is born out of wedlock where the elements are met; it does not state that such action is mandatory. See Walters v Nadell, 481 Mich 377, 383; 751 NW2d 431 (2008) (the use of the word “may” indicates discretionary action). This Court has previously held that, “even if the requirements of MCL 722.1441(1)(a) are met, the trial court may, of course, refuse to make such a determination “if the court finds evidence that the order would not be in the best interests of the child.” Glaubius v Glaubius, 306 Mich App 157, 173 n 4; 855 NW2d 221 (2014), lv gtd ___ Mich ___ (2014). (quotation marks and citation omitted) . . .

In this case, by contrast, it is undisputed that the best-interest factors in MCL 722.1443(4) do apply. By its express terms, that provision applies to a trial court’s “determin[ation] that a child is born out of wedlock.” Id. Consequently, unlike as was arguably the case in Helton in the context of a revocation of acknowledgement of parentage, there was no need to look beyond the statutory provision itself for the applicable legal standard. Helton is therefore inapplicable.

Finally, the trial court indicated that it had applied a clear and convincing evidentiary standard when it reached its determination regarding the best interests of the child under MCL 722.1443(4). We note that this provision does not expressly articulate a “clear and convincing” evidentiary standard. Id. However, assuming that the “clear and convincing evidence” standard applies, as it was applied in Helton under the child custody act, that indeed was the standard that the trial court applied in this case. Consequently, defendants can claim no error in the trial court’s application of the “clear and convincing” evidentiary standard.

For all of these reasons, defendants’ argument that the trial court’s decision should be reversed for failure to properly assign the burden of persuasion, and to apply the proper legal standard, lacks merit.

The Court next addressed whether the trial court erred in "declining to conclude that an order determining that MP was born out of wedlock would not be in her best interests . . . ."

In sum, the trial court found under factor (d) that there was a strong bond of love between Jeffrey and MP, and found under factor (g) that there was not a significant risk of disruption of Jeffrey’s relationship with MP if plaintiff was granted parenting time. The trial court also properly relied on Zollar’s testimony that MP could benefit from the introduction of plaintiff into her life when it addressed factor (f). The trial court’s findings do not leave us with a definite and firm conviction that a mistake was made. Id. Therefore, we hold that the trial court did not clearly err in declining to conclude that an order determining that MP was born out of wedlock would not be in her best interests. Id.

The Court then analyzed whether the trial court erred in awarding joint legal custody of MP to plaintiff and defendant.

In this case, plaintiff filed a complaint asking the trial court to decree that he was the minor child’s father, grant him joint physical and legal custody of the minor child, and establish child support and parenting time of the minor child. Plaintiff thus submitted a child custody dispute to the trial court as part of his original action. Once the trial court made a determination of paternity, it had authority under MCL 722.27(1) to enter orders regarding child custody and parenting time. See Kessler, 295 Mich App at 60.9 Regardless of whether the trial court believed that it had the authority to address the custody of the minor child and parenting time under MCL 722.1445, this Court will affirm where the trial court reaches the right result for the wrong reason. Taylor, 241 Mich App at 458. Here, the trial court properly addressed the issues of child custody and parenting time pursuant to MCL 722.27(1), and no reversal is required. Id. Defendants have not demonstrated plain error. Kern, 240 Mich App at 336.

The Court next addressed whether the trial court erred in awarding parenting time to plaintiff.

In this case, the trial court granted plaintiff supervised parenting time in a therapeutic environment. Defendants argue that the trial court erred in granting plaintiff parenting time under factor (a) and factor (i) of MCL 722.27a(6) because MP was timid around strangers, she had a history of serious illness, it was dangerous to put her in an environment where Cassidie was not present, and plaintiff’s home environment was not suitable due to his history of drug use and his failure to demonstrate that he was capable of taking care of MP. The sum of defendants’ arguments regarding parenting time is that MP would be placed in danger in plaintiff’s home. However, as discussed above, the trial court did not err in finding that plaintiff had the capacity and disposition to provide MP with love, affection and guidance, as well as provide her with food, clothing, medical care, other remedial care, and other material needs. Also, as discussed above, there was no evidence that plaintiff’s past marijuana use would affect his performance as a parent going forward. The trial court explicitly declined to find that MP would be endangered physically, mentally, or emotionally by granting parenting time to plaintiff. The trial court’s findings were not against the great weight of the evidence, and the trial court’s grant of supervised parenting time to plaintiff was not a palpable abuse of discretion. Pickering, 268 Mich App at 5.

The Court addressed last the admissibility of defendants' expert witness's report.

We reiterate that Zollar was defendants’ own expert witness, whose testimony defendants presented at trial. She simply was not, as is suggested, an “adverse” witness, whom defendants had a right to “cross-examine.” Nor was she a court-appointed witness, so as to implicate MRE 706 and give rise to a requirement of “notice” to the parties and a right of cross- examination. As Zollar was defendants’ own expert witness, defendants required no notice, and did not have a right of cross-examination. Further, defendants knew at the time of the trial court’s July 26, 2013 bench ruling, and the succeeding August 29, 2013 order, that the trial proofs were closed, that Zollar was yet to meet with plaintiff for a “concluding evaluation,” and that “before any further orders from the Court will issue regarding contact of any form, Ms. Zollar needs to complete that and report to the Court.” Defendants thus were fully aware of the procedure being employed, and did not object. Such conduct could be held to constitute a waiver of objection to this procedure on appeal. See People v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999), quoting United States v Olano, 507 US 725, 733; 113 S Ct 1770; 123 L Ed 508 (1993) (defining waiver as the “intentional relinquishment of a known right).

In its May 28, 2014 order denying defendants’ motion for reconsideration, the trial court noted that “Ms. Zollar stated [in her trial testimony] ‘I think if someone is willing to make a very serious ongoing workable commitment where they are willing to work with the other caretakers, all the other caretakers, without being adversarial, then it can be a very good thing for children. It means, as we’d like to think, yeah, somebody else loves that child’. In that situation [MP] could benefit.” The court thus stated that “parenting time shall consistent with Robin Zollar’s recommendation be supervised by her in a therapeutic environment achieving Reasonable Rights of Parenting Time as swiftly as possible in the best interest of the minor.” Yet again, therefore, the trial court required and highlighted the continuing role that Zollar—defendants’ own expert—would continue to play . . .

We further note that, at a July 21, 2014 hearing, the trial court observed, in denying defendants’ motion to stay proceedings (pending appeal) relative to parenting time, that it had “addressed that pretty specifically as to why it moved forward with an Order, you know, when it did, inconsistent again with the statements of Ms. Zollar.” (Emphasis added). The record thus is clear that, in issuing its custody and parenting time order, the trial court did not follow the recommendation of defense expert Zollar. Defendant and the dissent do not explain how, particularly in that circumstance, defendants were reversibly denied due process by not being allowed to further “cross-examine” their own expert . . .