In Eljahmi v Elgarmi, Docket No. 270848 (Unpublished, decided November 30, 2006), the Michigan Court of Appeals found error where the trial court set aside an ex parte order granting custody to Elgarmi (the child’s biological father) and permitted the maternal grandparents to intervene and to retain custody of their grandchild who had resided with them since birth.
The mother was the victim of a fatal drive-by shooting. The father was “a person of interest” in the investigation. The grandparents sought a guardianship, but the father, who had only parenting time under the existing custody order obtained the ex parte emergency order a day prior to the hearing on the guardianship matter.
Once the trial court set aside the ex parte order and allowed the intervening grandparents to retain custody, it also suspended the father’s parenting time until such time as he might be cleared in the ensuing investigation of the mother’s death. The father appealed.
In a concurring opinion, Justice Alton T. Davis held that since the plaintiff (the deceased mother) was the only individual ever granted legal and physical custody of the child, her death caused the child to be entirely without a legal custodian. Therefore, custody of the child was at issue at the time of the mother’s death and Michigan law did not preclude the grandparents from being involved in the court proceedings.
More important, because whatever next occurred, the court would be required “to modify or amend its previous [custody order] or issue a new order so as to change the established custodial environment of a child.” Thus the court’s failure to conduct a best interest hearing required remand for an evidentiary hearing.
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