Dennis v. Tyler

1

OLIVIA DENNIS, Plaintiff-Appellee, v. STEVE TYLER, Defendant-Appellant.

No. 358222

Court of Appeals of Michigan

February 17, 2022

UNPUBLISHED

Allegan Circuit Court LC No. 2013-052663-DM

Before: Cavanagh, P.J., and Jansen and Riordan, JJ.

PER CURIAM.

In this divorce proceeding, defendant appeals as of right following the trial court's order that vacated the child custody and parenting-time provisions of the judgment of divorce that applied to the minor child, BT. On appeal, defendant argues that the trial court erred by not considering the best-interest factors for BT when vacating the custody and parenting-time provisions. We agree and remand the matter back to the trial court for further proceedings consistent with this opinion.

This case represents the third appeal stemming from the divorce proceedings between plaintiff and defendant. After this Court issued its opinions in Dennis v Tyler, unpublished per curiam opinion of the Court of Appeals, issued March 21 2017 (Docket No. 331503) (Dennis I), and Dennis v Tyler, unpublished per curiam opinion of the Court of Appeals, issued April 30, 2019 (Docket No. 345492) (Dennis II), the trial court received a notice of prior court proceedings occurring in Kalamazoo Circuit Court involving BT. Specifically, the Kalamazoo Circuit Court had entered an order of filiation regarding BT's biological father, who is not defendant. The trial court then, sua sponte, entered an order vacating the parenting-time and custody provisions of the judgment of divorce in this case. Specifically, the trial court ruled:

The Court of Appeals indicated that the Trial Court complied with the first remand and that the Plaintiff needed to file a motion in order to change the custody and parenting time provisions of the Judgment of Divorce in light of the Court's determination that the Defendant is not an affiliated father. Plaintiff has not filed such a motion. On September 25, 2020, this Court received a notice of prior court proceedings indicating that Kalamazoo had initiated a paternity case 2020-6166- DP regarding the child at issue in this case. Based upon the Court of Appeal's 2019 order, the initiation of the Kalamazoo 2020 case, and the requirement that paternity be established prior to any entry of Custody, Parenting Time, or Child Support, the Court hereby VACATES any provision relating to Custody, Parenting Time, or Child Support in 13-52663-DM.

Defendant moved for reconsideration, and the trial court denied his motion because it found that he did not demonstrate palpable error. This appeal followed.

Defendant first argues that the trial court erred by ruling that the provisions in the judgment of divorce must be vacated because defendant could not establish paternity, which the court concluded was necessary before an order for custody or parenting time could be entered. We agree.

"We review matters of statutory interpretation and constitutional issues de novo." LeFever v Matthews, ___ Mich.App. ___, ___; ___N.W.2d ___ (2021) (Docket No. 353106); slip op at 4. Further, whether a party has legal standing to assert a claim constitutes a question of law that is reviewed de novo. Heltzel v Heltzel, 248 Mich.App. 1, 28; 638 N.W.2d 123 (2001).

This Court has emphasized that the Child Custody Act, MCL 722.21 et seq., is the exclusive means of pursuing child custody rights, whereas the Paternity Act, MCL 722.711 et seq., establishes a putative father's paternity and supplies a basis for court-ordered child support, custody, or parenting time, and the Acknowledgment of Parentage Act, MCL 722.1001 et seq., provides a means for a putative father to similarly establish paternity, but without further adjudication under the Paternity Act. See Aichele v Hodge, 259 Mich.App. 146, 153; 673 N.W.2d 452 (2003); Eldred v Ziny, 246 Mich.App. 142, 148; 631 N.W.2d 748 (2001).

The trial court did not explain in its order vacating the provisions of the judgment of divorce why "the requirement that paternity be established before any entry of Custody, Parenting Time, or Child Support" required it to vacate the provisions of the judgment of divorce. However in its order denying defendant's motion for reconsideration, the trial court cited Hoshowski v Genaw, 230 Mich.App. 498; 584 N.W.2d 368 (1998), for the proposition that a "putative father may not seek custody or parenting time under the Child Custody Act unless there is first an acknowledgement of paternity or an order of filiation under the Paternity Act."

In Hoshowski, 230 Mich.App. at 499, the defendant was the biological mother of a child, and she appealed an order of filiation that determined that the plaintiff was the child's father. The defendant argued that the Paternity Act controlled the plaintiff's complaint and, before 1994, it required the plaintiff to file for paternity under the Paternity Act before moving for custody pursuant to the Child Custody Act. Id. at 500. However, this Court determined that the plaintiff and the defendant properly executed an affidavit of parentage when the child was born, and this acknowledgment established the plaintiff's paternity "for all purposes" which would not require him to proceed under the Paternity Act before seeking custody and parenting time. Id. at 501. This Court in Hoshowski only ruled that an affidavit of parentage was sufficient to establish paternity "for all purposes," which meant that the plaintiff could avoid moving for a paternity determination under the Paternity Act before moving for custody and parenting time under the Child Custody Act. Therefore, the trial court's reasoning in this case is incorrect because Hoshowski does not affirmatively require that every putative father establish paternity before being included in a custody and parenting-time order.

However, as explained by this Court in Aichele, 259 Mich.App. at 162, putative fathers must establish paternity before they have standing to move for custody and parenting time pursuant to the Child Custody Act. The defendant in Aichele, 259 Mich.App. at 148, was married to another man when she gave birth to a minor child who was fathered by the plaintiff. While she was still married to her husband, the defendant and the plaintiff executed an affidavit of parentage that listed the plaintiff as the biological father of the minor child. Id. at 148-149. The plaintiff then moved for joint legal custody, reasonable parenting time, and a determination of child support. Id. at 149. In response, the defendant moved to dismiss the plaintiff's complaint for lack of standing, arguing that the minor child was presumed by the Paternity Act to be the child of her marriage to her husband, and denying that the plaintiff was the father. Id. The defendant's husband then intervened, and he argued that he was the presumptive father and that the plaintiff's affidavit was invalid because the Acknowledgment of Parentage Act required the defendant to be unmarried at the time the plaintiff and the defendant signed the affidavit. Id. at 150.

In determining whether the plaintiff had standing to move for custody and parenting time under the Child Custody Act, this Court ruled that "the Paternity Act, the Acknowledgement of Parentage Act, and the Child Custody Act, which serve interrelated purposes, must be interpreted consistently with each other and read in pari materia." Id. at 161. This Court held:

Accordingly, under the Child Custody Act, when a child is born in wedlock and there has been no judicial determination that the child is not issue of the marriage, the "parents" are the mother and her husband. This is in keeping with Girard [v Wagenmaker, 437 Mich. 231; 470 N.W.2d 372 (1991)], in which our Supreme Court held that if a child is conceived or born during a marriage and there has been no judicial determination that the child was not issue of the marriage, a putative father has no standing to contest paternity under the Paternity Act or seek custody under the Child Custody Act.

Here, because defendant and [her husband] were married when the child was conceived and born, defendant and [her husband] are her parents. There has been no judicial determination otherwise. Under these circumstances, plaintiff cannot seek such a determination under the Paternity Act. Further, he cannot execute a valid affidavit of parentage under the Acknowledgement of Parentage Act. In essence, when a child is born during a marriage, a putative father can never successfully institute legal proceedings to be declared a parent. Because plaintiff cannot obtain a legal determination that he is the child's "parent," he does not have standing to seek custody of her under the Child Custody Act. [Id. at 161-162 (citations omitted).]

Therefore, putative fathers must have standing in order to seek custody of minor children under the Child Custody Act, and standing requires a showing of paternity.

In this case, defendant was not the party who initially raised the issue of custody. Plaintiff is the party who moved for divorce and moved for custody and parenting-time determinations of the minor child. Defendant does not need to seek standing, through paternity, because he is the nonmoving party.

Additionally and contrary to the trial court's assertion, this Court has ruled that a party who is not a biological parent of a minor child may, nevertheless, be awarded custody of the minor child through divorce proceedings. In Sirovey v Campbell, 223 Mich.App. 59, 63; 565 N.W.2d 857 (1997), the plaintiff was the biological father of a minor child, and the defendant was the biological mother. The plaintiff and the defendant were married at the time that the minor child was born, but then they later entered a consent judgment of divorce that awarded sole physical custody of the...