Rights of a Biological Parent vs a Third Party Custodian | Re Dux

A compelling question often arises when a biological parent dies and the other parent, having established parentage, but not having an established custodial environment with the minor child(ren), seeks primary custody. This arises most often in the context of the child or children having primarily lived with the mother and/or maternal grandparents. In Frowner v Smith, the Michigan Court of Appeals has given a fresh look at what this scenario looks like in the context of the holdings in Heltzel v Heltzel and Hunter v Hunter.

On April 26, 2012, the Court of Appeals (COA) released an opinion for publication in Frowner v Smith. In the Frowner case, after the mother died, the father--an acknowledged father--sought custody from the maternal grandparents. The seminal issue was whether a biological parent has to satisfy the Vodvarka threshold--i.e., to show a major change in circumstances or good cause--to change custody from a third party custodian after the death of the other biological parent.

Apparently, Mr. Smith had some parenting time achieved by stipulation and order in what sounds like an incredibly messy trial court file (missing motions, orders and other documents.) The trial judge challenged the father on the threshold issue of Vodvarka--in other words--chastised Mr. Smith for filing a motion to change custody from the third party custodians who, according to the trial judge, had an established custodial environment with the third party custodians, without claiming or establishing  a major change in circumstances. The trial court denied Mr. Smith's motion and he appealed.

The COA confirmed what the Michigan Supreme Court has stated in Hunter v Hunter, 484 Mich 247, 263; 771 NW2d 694 (2009) – that when there are competing presumptions between a third party custodian with whom a child has an established custodial environment and a biological parent who does not have custody of the child, the parental presumption trumps the third party custodian / established custodial environment presumption.

Thus,  the Frowner panel held the trial court clearly erred by holding that a parent has to demonstrate the Vodvarka threshold of proper cause or change of circumstances in order for a trial court to evaluate whether it can change custody from the third party custodian to the parent. The Frowner panel reiterated the holding of the Hunter Court, saying that under MCL 722.25(1) the third party custodian has to demonstrate by clear and convincing evidence that it is not in the child’s best interest to have custody in the parent, emphasizing that Smith has constitutional rights to custody that cannot so easily be brushed aside:

"[D]ue regard for Smith’s parental rights requires that the circuit court presume him to be the proper caretaker of his child. Enforcing this presumption requires that any opposing presumption, shielding the child from a custodial change absent a showing of proper cause or changed circumstances, must yield."

Frowner v Smith, 296 Mich App 374; __ NW2d ___ (2012) Download Frowner_v_Smith

See also Hunter v Hunter, 484 Mich 247; 771 NW2d 694 (2009) Download Hunter_v_Hunter

See also Heltzel v Heltzel, 248 Mich App 1; 638 NW2d 123 (2001) Download Heltzel_v_Heltzel

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Comments

[moved here]

Well, if the biological parents are capable of taking care of the child(ren), then he must have the right to custody over the third custodian. Anyway, actually whoever can provide the best for the child and whom the child chooses, then, that's it.