PRAWDZIK
v.
HINER
Docket No. 115068.
Michigan Court of Appeals.
Decided January 3, 1990.Napieralski & Walsh, P.C. (by Peter P. Walsh), for plaintiffs.
Raymond J. Pater, for defendant.
*247 Before: DANHOF, C.J., and CYNAR and WEAVER, JJ.
PER CURIAM.
Defendant appeals as of right from a Kent Circuit Court order denying her application for a writ of habeas corpus, wherein she sought custody of her child, Stefen Hiner, and alleged that the trial court did not have subject-matter jurisdiction to grant custody to plaintiffs. We affirm the judgment below.
Plaintiffs are the paternal grandparents of Stefen Hiner. Defendant and the child's father, Bruce Prawdzik, were never married. Bruce Prawdzik takes no part in this appeal. Stefen Hiner was born June 25, 1982. He has resided with plaintiffs since October, 1982. In December, 1983, plaintiffs filed for custody. Both the father and defendant mother agreed to grant plaintiffs temporary custody for one year. On December 7, 1984, plaintiffs moved to extend temporary custody until the custody hearing in February, 1985. On December 13, 1984, defendant voluntarily granted permanent custody to plaintiffs. The circuit court entered its order granting plaintiffs full custody on May 2, 1985.
The trial court subsequently denied defendant's request for increased visitation and temporary custody pending a custody evaluation. Defendant filed an application for a writ of habeas corpus seeking custody of her child and alleging that the trial court did not have subject-matter jurisdiction to grant custody to plaintiffs. The trial court denied defendant's motion and motion for reconsideration.
I
On appeal defendant contends the circuit court *248 did not have jurisdiction to consider plaintiffs' petition for custody of their grandson.
Our Supreme Court has ruled that "where a child is living with its parents, and divorce or separate maintenance proceedings have not been instituted, and there has been no finding of parental unfitness in an appropriate proceeding, the circuit court lacks the authority to enter an order giving custody to a third party over the parents' objection." [Emphasis added.] Ruppel v Lesner, 421 Mich 559, 565; 364 NW2d 665 (1984), reh den 422 Mich 1201 (1985).
The issue before us is whether the court has jurisdiction to hear a custody dispute initiated by nonparents with whom the child is living.
In addressing this issue, two panels of this Court have ruled that in Ruppel the Supreme Court created two exceptions to the lack of subject-matter jurisdiction: where divorce or separation proceedings have begun and where there has been a finding of parental unfitness. Those panels rejected the idea that there is a third exception: where a child is not living with his or her parents. Hastings v Hastings, 154 Mich App 96; 397 NW2d 232 (1986), lv den 428 Mich 859 (1987); Marshall v Beal, 158 Mich App 582; 405 NW2d 101 (1986). To the extent that they failed to recognize the third exception, we disagree with these cases.
Plaintiffs have had physical custody over the child for more than five years. The concern recognized in Ruppel, that anyone could file an action to take away custody of a child from its parents merely because they believe they might provide "a better home," is not a factor here. Plaintiffs have been acting as the child's psychological parents for most of his life. Allowing these plaintiffs, who have been the child's primary custodians, to bring an action for custody will not threaten to take the *249 child from his home by misuse of the "best interests of the child" rule. We find that under Ruppel a third party who has had physical custody of the child may bring an action for custody.
The trial court did not err in denying defendant's motion for dismissal.
II
Defendant's second argument is that a November 28, 1988, friend of the court custody evaluation suggesting that custody remain with the plaintiffs was erroneous. This issue was not raised by defendant nor heard by the circuit court prior to this appeal. Because defendant has raised this issue for the first time on appeal, it is not properly preserved. Attorney General v Blue Cross & Blue Shield of Michigan, 168 Mich App 372; 424 NW2d 54 (1988), lv den 432 Mich 888 (1989).
We affirm the trial court's judgment below.
DANHOF, C.J. (dissenting).
I respectfully dissent from the majority's conclusion that the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., creates an independent cause of action whether the child resides with one of the parents or with a third party. The Supreme Court has held that the Child Custody Act does not give a party substantive rights to custody of a child. Ruppel v Lesner, 421 Mich 559, 565; 364 NW2d 665 (1984). It authorizes forms of relief and sets forth procedures and creates standards for resolving custody claims. Id.
I agree with the line of cases that hold that in the absence of some other basis for the court to assert jurisdiction over the minor child, such as previous judicial intervention in divorce proceedings or neglect proceedings, the circuit court may *250 not entertain an action for custody instituted by a nonparent. Id.; Doss v Baker, 173 Mich App 546, 548; 434 NW2d 190 (1988); Marshall v Beal, 158 Mich App 582, 589; 405 NW2d 101 (1986); Hastings v Hastings, 154 Mich App 96, 101; 397 NW2d 232 (1986), lv den 428 Mich 859 (1987). A nonparent may not create a child custody dispute under the act simply by filing a circuit court complaint alleging that the child's best interests are served by giving custody to the nonparent. Ruppel, supra, p 566; Doss, supra, pp 548-549.
I would find that no circumstances creating an independent basis for jurisdiction are found in this case and vacate the trial court's order.