Hunter v. Hunter

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

FILED JULY 31, 2009

ROBERT HUNTER and LORIE HUNTER,

Plaintiffs-Appellees,

v No. 136310

TAMMY JO HUNTER,

Defendant-Appellant,

and

JEFFREY HUNTER

Defendant.

BEFORE THE ENTIRE BENCH

KELLY, C.J.

This child custody case requires us to examine (1) the scope of the

constitutional rights of natural parents in raising their children, (2) how provisions

of Michigan’s Child Custody Act (CCA)1 interact with those rights, and (3)

whether the circuit court in this case applied the correct legal standards (a) in

1
MCL 722.21 et seq.
finding defendant,2 the children’s biological mother, to be an unfit parent and (b)

in awarding legal and physical custody of her four children to the children’s

paternal uncle and his wife.

We conclude that the circuit court did not apply the correct legal standards.

We also overrule Mason v Simmons,3 which the lower courts relied on, because its

holding is inconsistent with the statutory language of the CCA and inconsistent

with longstanding principles of Michigan custody jurisprudence. Therefore, we

reverse the judgment of the Court of Appeals and remand the case to the circuit

court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

In 2002, Tammy Hunter and her husband, Jeff Hunter, lived in Indiana with

their four young children, who ranged in age from two to nine years. There is no

evidence in the record that Indiana child welfare authorities ever investigated or

sought jurisdiction over the family. Tammy and Jeff began using crack cocaine.

In August 2002, Tammy left her four children in Jeff’s care at home and did not

return for six days. During her absence, Jeff contacted his brother and sister-in-

law in Michigan, plaintiffs Robert and Lorie Hunter, and requested their

2
“Defendant” herein refers to appellant Tammy Jo Hunter.
3
Mason v Simmons, 267 Mich App 188; 704 NW2d 104 (2005).

2
assistance. Robert drove to Indiana, collected the children, and returned to

Michigan.

Two months later, Tammy and Jeff came to Michigan and retrieved their

children, claiming that they had successfully overcome their drug addictions. A

short time later, however, plaintiffs learned that Tammy and Jeff had relapsed.

Plaintiffs again drove to Indiana and brought the children to Michigan. Robert

testified that he and Lorie told Tammy and Jeff that “we were taking the kids . . .

and told them they had to give us the kids and sign these guardianship papers.”

Tammy signed papers establishing a limited guardianship with plaintiffs.

Seven months later, in May 2003, Tammy and Jeff petitioned the Oakland

Circuit Court to terminate plaintiffs’ guardianship. However, they failed to appear

at a June 2003 hearing because they were again using cocaine. On July 1, 2003,

the circuit court dissolved the limited guardianship and appointed plaintiffs full

guardians of the children.

Tammy’s life further deteriorated when she was incarcerated in August

2004. She was released from prison in April 2005 and, three months later, filed a

petition in the Oakland Circuit Court seeking an opportunity to visit her children.4

The circuit court required her to verify her drug-free status since her release from

prison. She was required to undergo biweekly drug testing, attend Alcoholics

4
Tammy obtained a divorce from Jeff while he was incarcerated in Indiana.
Jeff has been incarcerated on and off since 2003 and was never a party to this
appeal.

3
Anonymous or Narcotics Anonymous meetings, and maintain weekly telephone

contact with her children. She complied with each of these requirements.

On November 9, 2005, the circuit court ordered Tammy to begin paying

child support and allowed supervised visits with the children. At a review hearing

conducted six months later, the circuit court noted that Tammy’s visitation had

gone well and that she regularly paid child support. The circuit court expanded

her parenting time, awarding her unsupervised weekend visits in Michigan during

May and June 2006 and overnight, unsupervised visits in Indiana beginning in

July 2006. The court also continued her child support obligation and ordered her

to submit to weekly drug screens. She again met each of the court’s requirements.

By the time this case was filed, Tammy was having monthly unsupervised

weekend visits with the children at her Indiana home and in Michigan.

In May 2006, plaintiffs filed this action seeking legal and physical custody

of the children. The parties stipulated that the Friend of the Court (FOC) referee

would make a preliminary finding regarding the children’s established custodial

environment and whether Tammy was a “fit parent,” using Mason v Simmons “as

its guide.”

The referee determined that the children had an established custodial

environment with plaintiffs and that Tammy was an unfit parent. Tammy filed

objections to the referee’s report and requested a hearing de novo. Ten days after

receiving the referee’s report, the circuit court entered another order. It required

Tammy to attend parenting classes, submit to random drug screens, participate in

4
substance abuse counseling, and attend family counseling sessions with her

children and her live-in boyfriend. Tammy again complied with all requirements.

At the evidentiary hearing, several witnesses testified regarding the

circumstances in 2002 and 2003 that led to the establishment of plaintiffs’

guardianship of the children. Tammy testified that she had remained drug-free

since August 2004 and supplied the court with a compendium of negative drug

screen reports. She also testified that she earned $10.50 an hour as an assistant

sales manager and lived with her boyfriend in a four-bedroom home in Indiana. A

family therapist who had evaluated the children pursuant to a circuit court order

reported that the children were “attached” to Tammy and “have a preference to

move [in] with her full time.”

The circuit court concluded that Tammy was not a fit parent. In its bench

ruling, the court gave its reasons:

Now, as to the issue of mom’s fitness.

I believe that mom is a very nice person.

That she loves these children very dearly and I think they love
her.

And I’m impressed by the progress that she has made.

But I don’t believe that her love for the children is equivalent
to being a fit parent.

When we look at the definition of fitness, it’s not about
whether she’s a nice person, it is not about whether today she has
made progress—and, again, she has made progress—it is about what
happened in conjunction with these kids.

5
 And in 2002 the parents were drug addicted.

They could not provide a home for the children and the
family intervened and rather than having [Children’s Protective
Services] involvement and have these children go to foster care the
family took over and stepped in and provided a stable and loving
home for these four kids, it doesn’t happen very often and it’s
wonderful when that does happen and I think, again, these kids are
doing as well as they are today because of that intervention.

And mom has made progress but there are still numerous
questions and numerous issues.

These kids have never really lived with her for the last five
years.

And in Dr. [Jerome] Price’s report he talks about that, that
they regard going to mom’s as vacation time.

They have not had to do the grueling, day to day, sort of
parenting and be tested that way so we can make some determination
about what the current situation is.

And mom lives with a man, who seems like a very nice
individual also, a hard working person, but they live in an out of
wedlock relationship and exposing the children to an out of wedlock
relationship, given all of the other instability of their lives at this
point is questionable judgment.

I heard his testimony that he’s listed her as a beneficiary on
his life insurance and he expects that he will leave her his assets
should he pass away.

But the truth of the matter is she has no legal rights as a live
together person.

There is a reason that we have marriage in this society and
marriage protects her.

The relationship she is in gives her no protection and if at any
time Mr. McConnell wants to tear up the letter, change the
beneficiary, move out, he, of course is free to do so, as she is, and
there are no legal ramifications to that.

6
 So she is not really very well protected and without his
assistance she cannot maintain the children.

She’s been in a home for six months; that’s a lease home and
she admitted herself that she could not possibly maintain the
children financially without Mr. McConnell being there and without
his financial assistance.

So I think she has made terrific strides but I don’t think she’s
at a point yet where we can say she is able to provide a stable and
secure home for these four children, who have been out of her care
for five years.

So I don’t believe that’s the definition of fitness.

The court then held a best interests hearing. After considering the

testimony, the court agreed with the referee’s findings. The court determined that

9 of the 12 best interest factors5 favored plaintiffs and that the parties were equal

with respect to 2 of the factors.6 The court also stated on the record that it had

“taken into consideration” the remaining factor, the reasonable preference of the

children,7 in reaching its decision. The court held that it was in the children’s best

interests to remain with plaintiffs and granted them physical and legal custody. It

also ordered Tammy to pay child support and $4,000 of plaintiffs’ attorney fees.

The court later denied Tammy’s motion for reconsideration.

Tammy filed an application for leave to appeal in the Court of Appeals. In

a split, unpublished decision, the Court of Appeals majority affirmed the custody

5
MCL 722.23(b), (c), (d), (e), (f), (g), (h), (j), and (l).
6
MCL 722.23(a) and (k).
7
MCL 722.23(i).

7
determination, but reversed the award of attorney fees.8 Judge Gleicher dissented.

She would have reversed the custody determination because the circuit court’s

decision regarding parental fitness was unconstitutional and against the great

weight of the evidence. We granted leave to appeal.9

II. LEGAL BACKGROUND

We review de novo questions of law involving statutory interpretation and

questions concerning the constitutionality of a statute.10 Findings of fact in child

custody cases are reviewed under the great weight of the evidence standard.11

The central issues in this case are (1) what is the proper application of MCL

722.25(1) and MCL 722.27(1)(c) and (2) do the federal constitutional standards

concerning the fundamental rights of parents to raise their children control our

answer to the first question.

A. United States Supreme Court Precedent

The importance of the family and the “essential,” “basic,” and “precious”

right of parents to raise their children are well-established in United States

8
Hunter v Hunter, unpublished opinion per curiam of the Court of Appeals,
issued March 20, 2008 (Docket No. 279862).
9
Hunter v Hunter, 482 Mich 981 (2008).
10
Taylor v Gate Pharmaceuticals, 468 Mich 1, 5; 658 NW2d 127 (2003).
11
MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889
(1994).

8
Supreme Court jurisprudence.12 This right is not easily relinquished. “The

fundamental liberty interest of natural parents in the care, custody, and

management of their child does not evaporate simply because they have not been

model parents or have lost temporary custody of their child to the State.”13

Therefore, to satisfy constitutional due process standards, the state “must provide

the parents with fundamentally fair procedures.”14

In 2000, in the case of Troxel v Granville,15 the United States Supreme

Court delivered its most relevant pronouncement in this area of the law. In a

plurality opinion, the Court struck down the state of Washington’s “breathtakingly

broad” visitation statute as an unconstitutional infringement on the fundamental

right of parents to rear their children.16 The statute authorized “‘any person’” to

12
Stanley v Illinois, 405 US 645, 651; 92 S Ct 1208; 31 L Ed 2d 551
(1972), quoting Meyer v Nebraska, 262 US 390, 399; 43 S Ct 625; 67 L Ed 1042
(1923), Skinner v Oklahoma, 316 US 535, 541; 62 S Ct 1110; 86 L Ed 1655
(1942), and May v Anderson, 345 US 528, 533; 73 S Ct 840; 97 L Ed 1221 (1953).
13
Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599
(1982).
14
Id. at 753-754.
15
Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000).
16
Id. at 67. Troxel also included forceful language describing the
significance of parents’ fundamental liberty interest in the care, custody, and
control of their children. It noted that this interest “is perhaps the oldest of the
fundamental liberty interests recognized by this Court.” Id. at 65, citing Meyer,
262 US at 399, 401.

9
petition for visitation rights and authorized state courts to grant such visitation

whenever it “‘may serve the best interest of the child.’”17

B. Applicable Michigan Law

In 1970, the Michigan Legislature enacted the CCA. Among its provisions

are statutory presumptions that apply in custody disputes. The presumptions

pertinent to this case are found in MCL 722.25(1) and MCL 722.27(1)(c). MCL

722.25(1) states:

If a child custody dispute is between the parents, between
agencies, or between third persons, the best interests of the child
control. If the child custody dispute is between the parent or parents
and an agency or a third person, the court shall presume that the best
interests of the child are served by awarding custody to the parent or
parents, unless the contrary is shown by clear and convincing
evidence.

MCL 722.27(1)(c), by contrast, provides in part:

If a child custody dispute has been submitted to the circuit
court as an original action under this act or has arisen incidentally
from another action in the circuit court or an order or judgment of
the circuit court, for the best interests of the child the court may do 1
or more of the following:

***

(c) Modify or amend its previous judgments or orders for
proper cause shown or because of change of circumstances until the
child reaches 18 years of age . . . . The court shall not modify or
amend its previous judgments or orders or issue a new order so as to
change the established custodial environment of a child unless there
is presented clear and convincing evidence that it is in the best
interest of the child. The custodial environment of a child is

17
Id. at 67.

10
 established if over an appreciable time the child naturally looks to
the custodian in that environment for guidance, discipline, the
necessities of life, and parental comfort. The age of the child, the
physical environment, and the inclination of the custodian and the
child as to permanency of the relationship shall also be considered.

Thus, a conflict arises between these sections when a court hears a custody

dispute between a child’s natural parent and a third party with whom the child has

an “established custodial environment.” This Court has not addressed the proper

application of these sections of the CCA in such cases.

On numerous occasions before Troxel was decided, the Court of Appeals

considered the interplay of these two presumptions. Panels of the Court came to

conflicting conclusions about how to reconcile them.18 However, after Troxel, in

Heltzel v Heltzel, the Court recognized that, to properly protect a parent’s

fundamental liberty interest, the presumption of MCL 722.25(1) in favor of the

natural parent must control.19

18
Compare Rummelt v Anderson, 196 Mich App 491; 493 NW2d 434
(1992), and Glover v McRipley, 159 Mich App 130; 406 NW2d 246 (1987) (cases
where both presumptions were applicable. They held that the natural parent has
the burden. He or she must prove by a preponderance of the evidence that the best
interests of the child are served by placement with the parent), with Deel v Deel,
113 Mich App 556; 317 NW2d 685 (1982), Siwik v Siwik, 89 Mich App 603; 280
NW2d 610 (1979), Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978),
and Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975) (holding that the
parental presumption controls unless the third party shows by clear and convincing
evidence that custody with the natural parent is not in the best interests of the
child).
19
Heltzel v Heltzel, 248 Mich App 1, 26-27; 638 NW2d 123 (2001) (“We
do not believe, however, that the Legislature intended that in every custody
dispute between a noncustodial natural parent and a third-person custodian, the

11
 Heltzel further concluded that it was imperative that trial courts balance the

two significant interests. First, the lower courts must adequately safeguard the

fundamental constitutional nature of the parental liberty interest. Second, they

must simultaneously maintain the statutory focus of the CCA on the best interests

of the child. To achieve this balance, Heltzel held:

[C]ustody of a child should be awarded to a third-party
custodian instead of the child’s natural parent only when the third
person proves that all relevant factors, including the existence of an
established custodial environment and all legislatively mandated best
interest concerns within [MCL 722.23], taken together clearly and
convincingly demonstrate that the child’s best interests require
placement with the third person.[20]

The Court of Appeals thoroughly considered Heltzel’s analysis when it

decided Mason. It noted that no published Court of Appeals case had addressed

the applicability of Heltzel in cases in which a natural parent was unfit or had

neglected or abandoned a child.21

Without citing authority to support its conclusion, Mason then

distinguished Heltzel, saying that it applies only to custody disputes involving fit

third-person custodian could eliminate the fundamental constitutional presumption
favoring custody with the natural parent, and thus arrive on equal footing with the
parent with respect to their claim of custody to the parent’s child, merely by
showing that the child had an established custodial environment in the third
person’s custody. This interpretation . . . fails to take into proper account the
parents’ fundamental due process liberty interest in childrearing.”).
20
Id. at 27.
21
Mason, 27 Mich App at 198.

12
parents. It held that when “a parent’s conduct is inconsistent with the protected

parental interest, that is, the parent is not fit, or has neglected or abandoned a

child, the reasoning and holding of Heltzel do not govern.”22 Mason thus affirmed

the trial court’s determination that the defendant was not entitled to the

constitutional deference afforded a fit parent under Heltzel and Troxel. It extended

that reasoning to justify denying the natural parent the benefit of the statutory

presumption in MCL 722.25(1).

III. THE CCA’S PROTECTIONS

Custody cases involving natural parents inherently implicate the parents’

fundamental liberty interest in the care, custody, and management of their

children.23 Thus, they implicate the constitutional protections identified in the

United States Supreme Court cases previously discussed. The threshold question

this Court must address is whether the relevant provisions of the CCA adequately

protect a fit parent’s fundamental rights under existing United States Supreme

Court precedent.

A. Under Troxel, MCL 722.25(1) Must Control Over MCL 722.27(1)(c) in Order
to Adequately Protect Fit Parents’ Fundamental Rights

Troxel established a floor or minimum protection against state intrusion

into the parenting decisions of fit parents. It invalidated the state of Washington’s

22
Id. at 206.
23
Santosky, 455 US at 753.

13
third-party visitation statute as a violation of a natural parent’s fundamental rights.

It reasoned that the Washington statute was flawed because it afforded no

deference to a fit parent’s decision about his or her children’s best interests.24

Rather, the statute allowed “any third party seeking visitation to subject any

decision by a parent concerning visitation of the parent’s children to state-court

review.”25 Troxel also forbade courts from overturning decisions by a fit custodial

parent based “solely on the judge’s determination of the child’s best interests.”26

Rather, it held that courts must give some “special weight” to the parents’

determination of their children’s best interests.27

The constitutional protection in Troxel centers on the “traditional

presumption that a fit parent will act in the best interest of his or her child.”28 The

Washington statute’s lack of deference to a fit parent’s decision was inconsistent

with the presumption that fit parents act in the best interests of their children.

Hence, it was constitutionally infirm. Using that reasoning, Troxel established that

a natural parent’s fitness to parent is the touchstone for invoking the constitutional

protections of fundamental parental rights. The application of the statutory

24
Troxel, 530 US at 67.
25
Id.
26
Id.
27
Id. at 70.
28
Id. at 69.

14
presumption in MCL 722.25(1) must therefore be considered specifically in the

context of a fit parent to determine whether it satisfies constitutional scrutiny

under Troxel.

In Heltzel, our Court of Appeals recognized Troxel’s mandate: In order to

protect a fit natural parent’s fundamental constitutional rights, the parental

presumption in MCL 722.25(1) must control over the presumption in favor of an

established custodial environment in MCL 722.27(1)(c). We agree.

Several considerations compel this conclusion. First, Troxel explicitly

requires courts to give some deference to a parent’s decision to pursue custody

because it is inherently central to the parent’s control over his or her child.

By contrast, unlike the parental presumption in MCL 722.25(1), no

constitutional protections for third persons underlie the established custodial

environment presumption in MCL 722.27(1)(c). This Court has held that no

constitutional or statutory basis exists for third parties to have standing to seek

child custody solely because they have an established custodial relationship with

the child.29

29
Bowie v Arder, 441 Mich 23, 43; 490 NW2d 568 (1992) (rejecting the
argument that the CCA created a substantive right of a third party to seek custody
of a child with whom the third party has an established custodial relationship. The
Bowie Court observed that “[t]here is simply no provision of the [CCA] that can
be read to give a third party . . . a right to legal custody of a child on the basis of
the fact that the child either resides with or has resided with that party”); In re
Clausen, 442 Mich 648, 682-684; 502 NW2d 649 (1993) (rejecting the argument
that United States Supreme Court precedent established a federal constitutional

15
 Finally, we note that the vast majority of Michigan cases interpreting the

CCA support the conclusion that these presumptions were not meant to be given

equal weight.30 This conclusion is also in accord with Michigan’s longstanding

history of affording great respect to parental authority while consistently

recognizing that the best interests of the child control the analysis.31 For these

reasons, we conclude that, when these presumptions conflict, the presumption in

MCL 722.27(1)(c) must yield to the presumption in MCL 722.25(1).32

right of a third party to seek custody of a child with whom the third party has an
established custodial relationship).

We note that plaintiffs have standing to pursue this custody action by virtue
of their status as the children’s legal guardians. MCL 722.26b(1).
30
Bowie, 441 Mich at 43 (holding that an established custodial environment
does not establish a substantive basis on which to sue for custody under the CCA);
Deel, 113 Mich App at 561 (“Stevens holds that the presumptions should be
recognized equally, not weighted equally, and the language used in the statutes
suggests that the presumptions are not, in fact, of equal weight.”) (emphasis in
original). The few cases that have held otherwise have since been rejected as
unconstitutional under Troxel. E.g., Heltzel, 248 Mich App at 21-23 (“reject[ing]”
Rummelt and declining to follow its “unconstitutional[]” application of the CCA).
Rummelt and its predecessors had resolved the conflict in the statutory
presumptions. They said that the natural parent must show by a preponderance of
the evidence that removing the child from an established custodial environment
was in the child’s best interests.
31
Fletcher, 447 Mich at 889 (“[T]he primary goal of the Child Custody Act
. . . is to secure custody decisions that are in the best interests of the child.”);
Greene v Walker, 227 Mich 672, 677-681; 199 NW2d 695 (1924) (citing cases).
32
“‘[A]s between two possible interpretations of a statute, by one of which
it would be unconstitutional and by the other valid, our plain duty is to adopt that
which will save the act.’” Bowerman v Sheehan, 242 Mich 95, 99; 219 NW 69

16
 A remaining constitutional question involves the amount of deference due

under Troxel to fit parents. We conclude that the statute provides sufficient

deference to a fit natural parent’s fundamental rights to the “care, custody, and

management of their child . . . .”33 We so hold because the statute requires, in

order to rebut the parental presumption, clear and convincing evidence that

custody by the natural parent is not in a child’s best interests.

The clear and convincing evidence standard is “the most demanding

standard applied in civil cases . . . .”34 This showing must “‘produce[] in the mind

of the trier of fact a firm belief or conviction as to the truth of the allegations

sought to be established, evidence so clear, direct and weighty and convincing as

to enable [the factfinder] to come to a clear conviction, without hesitancy, of the

truth of the precise facts in issue.’”35

We agree with the Court of Appeals in Heltzel that, given the unique

constitutional considerations in custody disputes involving natural parents, “it is

not sufficient that the third person may have established by clear and convincing

evidence that a marginal, though distinct, benefit would be gained if the children

(1928), quoting Justice Holmes in Blodgett v Holden, 275 US 142, 148; 48 S Ct
105; 72 L Ed 206 (1927).
33
Santosky, 455 US at 753.
34
In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995).
35
Id. (citations omitted).

17
were maintained with him.”36 A third party seeking custody must meet a higher

threshold. He or she must establish by clear and convincing evidence that it is not

in the child’s best interests under the factors specified in MCL 722.23 for the

parent to have custody. This is entirely consistent with Troxel’s holding.

Although a fit parent is presumed to act in his or her child’s best interests, a court

need give the parent’s decision only a “presumption of validity” or “some weight.”

That is precisely what MCL 722.25(1) does when it requires clear and convincing

evidence to rebut the presumption.

Given our determination that (1) the parental presumption in MCL

722.25(1) prevails over the presumption in favor of an established custodial

environment in MCL 722.27(1)(c) and that (2) the parental presumption can be

rebutted only by clear and convincing evidence that custody with the natural

parent is not in the best interests of the child, we conclude that MCL 722.25(1)

satisfies constitutional scrutiny under Troxel.37

36
Heltzel, 248 Mich App at 28.
37
Our constitutional analysis is further supported by a comparison with
similar statutes in other states. The CCA’s provisions governing custody disputes
between a natural parent and a third party are more deferential to the natural parent
than some, but less deferential than others. Michigan appears to fall near the
middle of the spectrum. At one end are the strict “parental rights” jurisdictions,
which base a parent’s right to custody on the fitness of the parent. At the opposite
end are the “best interests” jurisdictions, which base custody exclusively on the
child’s needs and welfare. The standards in between usually give preference to the
biological parent through a rebuttable presumption that the best interests of the
child are served by giving custody to the natural parent. See, generally, anno:
Award of custody where contest is between child’s parents and grandparents, 31

18
ALR3d 1187, 1197-1198; In re Guardianship of Jane Doe, 93 Hawaii 374, 384-
385; 4 P3d 508 (Hawaii App, 2000).

Under the doctrine most deferential to natural parents, the parents are
entitled to the custody of their children unless (1) it clearly appears that they are
unfit, or (2) they have abandoned their right to custody, or (3) “extraordinary
circumstances” exist that require they be deprived of custody. Id.; Ex parte GC,
Jr, 924 So 2d 651, 656 (Ala, 2005) (requiring “clear and convincing evidence” of
parental unfitness to rebut the presumption in favor of the natural parent) (citations
omitted); State ex rel KF, 2009 Utah 4, P67; 201 P3d 985 (2009) (requiring
evidence of three factors establishing unfitness in order to rebut the presumption in
favor of the natural parent). Most courts using this standard rarely evaluate the
best interests of the child when resolving the issue. Rebutting the parental
presumption in the states using this standard typically hinges on a determination of
unfitness. Hence, this standard undoubtedly provides sufficient deference to a
natural parent’s decisions regarding the care, custody, and maintenance of his or
her child to satisfy Troxel.

Michigan, along with many other states, applies an intermediate parental
presumption standard that favors the biological parent. It is rooted in the Troxel
rationale that custody with the natural parent serves the best interests of the child.
Usually nonparents may rebut the presumption favoring the parent only by a
showing of clear and convincing evidence that custody with the natural parent is
not in the child’s best interests. MCL 722.25(1); In re Guardianship of Doe, 93
Hawaii at 385.

The standard least deferential to the natural parent’s wishes is often referred
to simply as the “best interests of the child standard.” It focuses on the interests of
the child and defines the relative benefits to the child of being with one or the
other party. It requires the court to compare the totality of the circumstances of
the two potential custodians, usually on the basis of statutory considerations
similar to those embodied in MCL 722.23. Courts using this standard typically
grant custody by determining, by a preponderance of the evidence, which
placement is in the best interests of the child.

The states that use this best interests of the child standard often give some
deference to the natural parent. But they are less deferential to the natural parent’s
wishes than Michigan is in MCL 722.25(1). For example, Or Rev Stat 109.119
(2007) provides a parental presumption. But it allows a third party having an
established parent-child relationship with the child to rebut it. The third party

19
 B. Troxel Does Not Require a Threshold Determination of Parental Fitness
in Custody Cases If No Statutory Requirement Exists

Defendant and some of the amici curiae argue that this Court must read into

the statute an implicit requirement for a fitness determination in order to protect

parents’ fundamental rights. Even if the presumption in MCL 722.25(1)

supersedes the presumption in MCL 722.27(1)(c), defendant argues that the court

must make a preliminary determination whether a natural parent is a fit parent.

Thus, defendant insists, Troxel prevents courts from allowing a third party to rebut

the presumption using a best interests analysis because it would insufficiently

protect the parent’s rights.

Defendant relies on In re JK in support of her argument. In that case, this

Court stated that “[a] due-process violation occurs when a state-required breakup

of a natural family is founded solely on a ‘best interests’ analysis that is not

supported by the requisite proof of parental unfitness.”38 Defendant urged us to

examine the Probate Code, the Juvenile Code, and other sections of Michigan law

to adopt a test for evaluating parental fitness. She claims that, to satisfy

need produce a mere preponderance of the evidence that granting custody to the
third party is in the best interests of the child. The Oregon Supreme Court upheld
the statute in the face of a due process challenge based on Troxel. In re
O’Donnell-Lamont & Lamont, 337 Or 86; 91 P3d 721 (2004).
38
In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003), citing Quilloin v
Walcott, 434 US 246, 255; 98 S Ct 549; 54 L Ed 2d 511 (1978).

20
constitutional scrutiny, such a test must be based on objective factors similar or

identical to those listed in those statutes.

We reject defendant’s arguments as beyond the scope of the holdings of

Troxel and In re JK. As noted previously, Troxel carefully limited the

constitutional scope of the parental presumption to the extent that a court need

give decisions by fit custodial parents only a “presumption of validity.”39 Since

MCL 722.25(1) applies a substantial presumption of the validity of decisions by

all parents, including fit custodial parents, the constitutional underpinnings of

Troxel are satisfied.40

39
Other jurisdictions whose courts have considered the proper application
of Troxel in similar legal contexts have also rejected the idea that Troxel mandates
a determination of parental fitness. Rather, in the context of motions to terminate
a guardianship or to modify custody in favor of a natural parent, many courts have
distinguished Troxel because it “was concerned with judicial interference in the
day-to-day child-rearing decisions of fit, custodial parents. . . . It did not address
situations in which the parent no longer has custody.” In re MJK, 200 P3d 1106,
1109 (Colo App, 2008), citing In re Guardianship of LV, 136 Cal App 4th 481,
493; 38 Cal Rptr 3d 894 (2006); see also In re MNG, 113 SW3d 27, 33 (Tex App,
2003).
40
Defendant would have the Court require a demonstration of parental
unfitness before allowing the parental presumption to be rebutted where no such
demonstration is required by the statute. That would in effect, give unlimited
deference to all parenting decisions of parents deemed to be fit. However, “[a]
determination that an individual has a fundamental right does not foreclose the
State from ever limiting it.” In re RA, 153 NH 82, 102; 891 A2d 564 (2005).
Such a determination is not constitutionally mandated. To hold that parental
unfitness is a mandatory prerequisite to rebutting the parental presumption would
be inconsistent with the CCA’s emphasis on best interests and lack of reference to
fitness.

21
 In re JK is distinguishable from the case before us. It was a case involving

termination of parental rights. Termination cases introduce a significantly

heightened intrusion upon a parent’s fundamental right to parent because they

involve an all-or-nothing proposition: whether a parent’s right to be a parent and

make decisions regarding his or her child’s upbringing is permanently severed. It

follows logically that under circumstances where the parental interest is most in

jeopardy, due process concerns are most heightened.

A custody award to a third party, by contrast, represents a lesser intrusion

into the family sphere. It does not result in an irrevocable severance of parental

rights or “‘a unique kind of deprivation’” that forces parents to confront the state.41

The Legislature has addressed these concerns by requiring the state to prove

parental unfitness by “clear and convincing evidence” in termination cases. It has

We note that our interpretation of the relevant provisions of the CCA is
similar to that of the courts in many jurisdictions that also utilize an intermediate
parental presumption standard. In re Guardianship of Doe, 93 Hawaii at 385
(“Because the preference for parents established in [Hawaii Rev Stat] 571-46(1) is
coupled with the best interest standard, we believe our jurisdiction is similar to the
majority of jurisdictions which adopt a custody presumption in favor of parents
subject to rebuttal.”); Evans v McTaggart, 88 P3d 1078, 1085 (Alas, 2004) (“We
thus hold that in order to overcome the parental preference a non-parent must
show by clear and convincing evidence that . . . the welfare of the child requires
the child to be in the custody of the non-parent.”).
41
Santosky, 455 US at 759 (citation omitted).

22
listed specific statutory factors that it has determined make a parent per se unfit

and warrant terminating his or her rights to a child.42

The quoted language from In re JK is inapplicable in custody cases such as

this because it does not involve the “state-required breakup” of a family. In

termination cases, the natural parent and the state are the parties to the action. To

protect the parental interest from improper state intrusion, the Legislature requires

the state to prove by clear and convincing evidence that at least one statutory

ground for termination exists. Hence, the state must show that the natural parent is

unfit.

In custody cases, by contrast, the state does not initiate the proceedings in

which the natural parent’s rights are at stake. Rather, custody determinations in

cases such as this merely give “recognition to a family unit already in

existence . . . .”43 Under such circumstances, “[w]hatever might be required in

other situations, we cannot say that the State was required in this situation to find

anything more than that [its decision was] in the ‘best interests of the child.”’44

42
MCL 712A.19b(3).
43
Quilloin, 434 US at 255.
44
Id.

23
 Finally, we note that a natural parent’s fitness is an intrinsic component of a

trial court’s evaluation of the best interest factors in MCL 722.23.45 Therefore,

although we hold that due process does not require a fitness determination where

the statute does not mandate it, we observe that fitness is an inextricable

component of the court’s inquiry.

For example, MCL 722.23(f) to (g) require the trial court to compare the

“moral fitness” and the “mental and physical health” of the parties. These factors

reflect the legislative determination that concerns about parental fitness are of

paramount importance in custody determinations. Therefore, MCL 722.25(1) uses

the clear and convincing evidence standard to safeguard the constitutionally

protected fundamental rights of fit custodial parents, as identified in Troxel. MCL

722.23, on the other hand, simultaneously fulfills the legislative purpose of

maintaining the focus of the inquiry on the best interests of the child.

C. Mason Erroneously Interpreted MCL 722.25(1)
by Adding a Determination of Fitness

We again note, as a preliminary observation, that MCL 722.25(1) does not

refer to fitness of the natural parent as a prerequisite for applying the statutory

presumption in the parent’s favor. MCL 722.25(1) applies to all natural parents

who are parties in custody disputes with third persons, not merely fit natural

45
31 ALR3d 1187, 1196 (noting that the probable reason courts have often
used the fitness and best interest inquiries interchangeably is because of “the fact
that both doctrines seek the same basic objective from two different approaches”).

24
parents. Nothing in the statute explicitly or implicitly suggests that the

presumption applies only in cases involving a parent adjudged to be a fit parent.

Rather, we believe that, in enacting the CCA, the Legislature set forth clear best

interest factors in MCL 722.23 that constitute a de facto evaluation of each

individual’s fitness to raise a child.46 In doing so, the Legislature rejected the

amorphous fitness/neglect/abandonment standard outlined in Mason by not

including any reference to that standard.47

Mason erred by holding that the statutory presumption in the natural

parent’s favor applies only to fit parents. This was an improper interpretation of

Heltzel, Troxel, and the CCA generally. The statutory presumption in MCL

722.25(1) is “‘a presumption of the strongest order[,]’”48 and one that “does not

turn solely on the question of fitness.”49 Numerous cases decided since the CCA

was enacted have agreed: the parental presumption controls unless the third party

46
It is difficult to conceive of a scenario where an unfit parent would
prevail on the best interest factors.
47
Bahr, 60 Mich App at 359 (“Since the Legislature is presumed to be
aware of the long-standing judicial precedent affecting an area in which an
exhaustive codification of the law is undertaken and enacted, we must conclude
the omission was intentional.”); compare MCL 712A.19b(3) (specifically
providing for termination of parental rights in cases of neglect or abandonment,
among other reasons).
48
Deel, 113 Mich App at 561-562, quoting Bahr, 60 Mich App at 359.
49
In re Weldon, 397 Mich 225, 276-277; 244 NW2d 827 (1976) (opinion of
Coleman, J.), overruled on other grounds in Bowie, supra.

25
shows by clear and convincing evidence that custody with the natural parent is not

in the best interests of the child.50

As discussed earlier in this opinion, the parental presumption has some

constitutional provenance, whereas the custodial environment presumption has

none. This persuades us that the parental presumption should properly control

over the established custodial environment presumption.

Mason held that the parental presumption controls with regard to fit parents

only because they alone are constitutionally protected. Mason further held that

unfit parents have the burden “to show, by a preponderance of the evidence, that a

change in the established custodial environment with the guardian was in the

child’s best interests.”51

However, Mason and its predecessors created this new standard out of thin

air.52 In the case before us, the Legislature has provided us with two standards that

irreconcilably conflict. Rather than resolve the conflict by divining a new

50
Henrikson v Gable, 162 Mich App 248, 253; 412 NW2d 702 (1987);
Stevens, 86 Mich App at 267; Bahr, Mich App at 360.
51
Mason, 267 Mich App at 207.
52
Glover, 159 Mich App at 147 (“We believe that placing the burden of
persuasion on the parent challenging an established custodial environment is better
calculated to elicit the quality of testimony and evidence required by a trial court
in its determination of the best interest of the child.”). What remains unanswered
in Glover is on what basis the Court rests this questionable proposition and why,
in any event, that determination justified the invention of a new standard. See
Rummelt, supra at 496 (“For the reasons stated therein, we agree with this Court’s
decision in Glover.”).

26
standard, as Mason did, we believe that the better course is to decide which of the

two presumptions controls.

We are convinced that the parental presumption must control. We are

persuaded of this (1) by the fact that, whereas the parental presumption has some

constitutional provenance, the established custodial environment presumption does

not, (2) by caselaw interpreting the tension between MCL 722.25(1) and MCL

722.27(1)(c) and (3) by the lack of reference to fitness in the CCA. The Court is

unwilling to restrict the parental presumption absent clear evidence from the

Legislature that a restriction was intended. Moreover, the CCA’s notable silence

regarding fitness, abandonment, or neglect of children suggests these words should

not be read into the statute.

The statutory presumption favoring natural parents is not contravened

merely because the statute provides greater protection for parental rights than

Troxel mandated as a constitutional matter. Mason’s contrary holding is

contradictory to the weight traditionally afforded to the parental presumption.53

53
Mason’s holding altered the burden of proof in that it essentially applied
the best interests of the child standard to disputes between unfit natural parents
and third-party custodians, in contravention of the language of MCL 722.25(1).
Mason, 267 Mich App at 207; see footnote 37 of this opinion.

Five years after the enactment of the CCA, the Court of Appeals in Bahr,
supra, rejected the exact argument accepted by Mason. Bahr first noted that,
before the enactment of the CCA, the best interests of the child were served by
awarding custody to the natural parent over a third party “unless it could be
affirmatively proven that the parent was unfit to have custody or had neglected or
abandoned the child.” Bahr, 60 Mich App at 359. After concluding that the

27
 Because the parental presumption in MCL 722.25(1) satisfies the

constitutional standards mandated for fit parents, no justification existed for

Mason to restrict that presumption only to fit parents. Nothing in Troxel can be

interpreted as precluding states from offering greater protection to the

fundamental parenting rights of natural parents, regardless of whether the natural

parents are fit. This rule applies here.

Legislature had deliberately omitted from the CCA any fitness determination in
such cases, Bahr plainly stated that “[r]ebuttal of the presumption in favor of
parental custody no longer requires proof of parental unfitness, neglect or
abandonment.” Id. at 360.

Numerous Court of Appeals cases decided after Bahr cited it favorably for
the proposition that, in custody cases between a natural parent and a third party,
the CCA requires no fitness determination. Stevens, 86 Mich App at 267;
Henrikson, 162 Mich App at 253 (1987). Oddly, Mason quoted the same language
from Bahr concerning the lack of need for a fitness determination under the CCA.
Mason noted that “some jurisdictions, including Michigan, have moved away
from using the ‘parental unfitness’ or ‘extraordinary circumstances’ standards and
focus on a placement’s detriment to the child.” Mason, 267 Mich App at 201.
The Court also noted that the parental presumption in MCL 722.25(1) applies “in
all custody disputes between parents and an agency or a third person.” Id.
(emphasis in original). Yet immediately after this discussion, Mason ignored its
own correct statement of law about the statutory presumption in MCL 722.25(1).
Instead, it denied the parental presumption favoring the natural father on the basis
of the fact that he was not entitled to the fundamental constitutional right to raise
his child. Id. at 203.

We recognize that Mason was not bound by Bahr and its progeny under
MCR 7.215(J)(1) because it was decided before 1990. However, we refer to Bahr
here because it correctly stated Michigan custody law after the enactment of the
CCA; Mason did not. We agree with the interpretation of the CCA promulgated
by the Bahr line of cases. We further agree that the Rummelt line of cases must be
rejected on the basis of Heltzel’s reasoning and for the reasons discussed herein.

28
 Defendant also argues that Mason’s arbitrary and subjective fitness

standard, and the trial court’s equally subjective application of that standard in this

case, violated her Fourteenth Amendment54 due process rights. She claims that,

because the Mason standard does not utilize objective criteria for evaluating

parental fitness, it lacks procedural protections sufficient to protect her due process

rights. Given our holding that Mason improperly limited the parental presumption

in MCL 722.25(1), we find it unnecessary to reach defendant’s constitutional

argument.

We conclude that Mason erred by reading a fitness requirement into the

parental presumption in MCL 722.25(1). The statute is entirely silent on the issue

of a parent’s fitness.55 Nothing in the statute or the CCA generally56 suggests that

parental fitness is a prerequisite to entitlement to the parental presumption in MCL

54
US Const, Am XIV.
55
Justice Corrigan acknowledges as much, post at 17, but brushes this
“bare observation” aside. We disagree with Justice Corrigan’s contention that we
fail to “adequately consider the various proceedings at which a parent’s fitness
may be questioned.” Post at 17. To the contrary, we explicitly address such
proceedings by holding that a natural parent whose parental rights were previously
terminated or are suspended cannot initiate an action under the CCA. See pp 30-
31 of this opinion.
56
Only one provision in the CCA refers to parental fitness at all. MCL
722.27b requires a court considering whether to grant visitation time to
grandparents to give deference to a fit parent’s decision to deny such time. This
provision was amended in 2004 in response to our decision in DeRose v DeRose,
469 Mich 320; 666 NW2d 636 (2003). DeRose held that the former version of
MCL 722.27b was unconstitutional under Troxel.

29
722.25(1). Because Mason’s holding was neither constitutionally mandated nor

consistent with the statute, Mason is hereby overruled.

D. Additional Concerns

Justice Corrigan’s concurrence raises a number of issues that we believe

deserve a response regarding the scope of this opinion. We offer the following

observations to more explicitly address what this opinion does not do:

(1) This case deals with custody actions initiated under the CCA involving

both the parental presumption in MCL 722.25(1) and the established custodial

environment presumption in MCL 722.27(1)(c). This opinion should not be read

to extend beyond CCA cases that involve conflicting presumptions or to cases that

involve parental rights generally but are outside the scope of the CCA.

(2) This opinion does not create any new rights for parents. The United

States Supreme Court decisions regarding the constitutional rights of parents

previously discussed in this opinion provide guidance that informs our analysis.

This opinion does not magically grant parents additional rights or a constitutional

presumption in their favor. It does not grant unfit parents constitutional rights to

their children other than due process rights.

(3) Parents may not bring actions under the CCA and invoke the parental

presumption in MCL 722.25(1) as an end run around previous custody

determinations. We agree with Justice Corrigan’s conclusion that [p]rinciples of

collateral estoppel generally prevent a party from relitigating an issue already

30
established in the first proceeding.”57 This Court has long recognized the

applicability of these principles to probate court orders such as the guardianship

orders in this case.58 Subsequently, we reiterated that “orders of probate courts

have the force and effect of judgments and are res judicata of the matters involved

and cannot be attacked collaterally.”59

Therefore, a parent whose rights have been terminated or suspended cannot

initiate an action for custody under the CCA because it would amount to a

collateral attack on the earlier proceedings. A termination order, by its nature,

finds that custody with the natural parent is not in the child’s best interests. A

parent’s only recourse in such cases is to appeal the order. A guardianship order,

similarly, suspends a parent’s parental rights and grants those rights in the child,

including a right to physical and legal custody, to the guardian under MCL

700.5215. Thus, defendant in this case would have been collaterally estopped

from initiating a custody action under the CCA. A parent’s recourse under these

circumstances is to file a motion to terminate the guardianship.60

57
Post at 18.
58
Chapin v Chapin, 229 Mich 515; 201 NW 530 (1924).
59
In re Ives, 314 Mich 690, 696; 23 NW2d 131(1946).
60
MCL 700.5208.

31
 In sum, collateral estoppel principles provide a sufficient basis to preclude

parents from initiating an action for custody under the CCA in order to circumvent

valid court orders affecting custody.61

61
Given this limitation, we reject Justice Corrigan’s assertion that we are
allowing a court to sweep “findings and admissions [of unfitness] under the rug.”
Post at 20. Under Justice Corrigan’s approach, a parent who is deemed unfit by a
court or admits being unfit at any time is never entitled to benefit from the parental
presumption in MCL 722.25(1). Thus, defendant in this case is not entitled to the
presumption in her favor because “defendant’s unfitness was clearly established at
prior proceedings.” Post at 20. Justice Corrigan’s approach is contrary to
Fletcher’s mandate that a court consider up-to-date information “and any other
changes in circumstances” when making custody determinations. Fletcher, 447
Mich at 889.

Our position is not that Fletcher precludes a circuit court from taking into
account a past finding of parental unfitness. Post at 19 n 13. Surely, when a court
evaluates the best interest factors in MCL 722.23, a past finding may still be
considered. Determinations of past, admitted unfitness are inevitably reconsidered
when there are ongoing proceedings before the court. Indeed, as Justice Corrigan
observes, “a parent’s fitness or custody rights are governed by an ongoing
proceeding—such as the guardianship proceeding here.” Post at 6. We do not
ourselves opine on whether “defendant’s lack of fitness here diminished.” Post at
19 n 13. We simply observe that the judge overseeing the guardianship
proceedings acknowledged such a progression in his increasingly generous
visitation orders.

Thus, our main disagreement with Justice Corrigan’s conclusion is the
extent to which she would make a prior finding of unfitness largely dispositive in
resolving the conflicting presumptions in the CCA. Here, plaintiffs relied
primarily on defendant’s past conduct as a basis for opposing her requests for
increased visitation. Nevertheless, the court overseeing the guardianship
proceedings repeatedly ruled in defendant’s favor. During those proceedings,
defendant was fulfilling increasing duties to her children and gaining increased
visitation time. By complying with what the court required of her, defendant
properly attempted to overcome the prior finding of unfitness that plaintiffs rely on
heavily in this custody action. Indeed, had defendant filed a motion to terminate
the guardianship under MCL 700.5208, her admission of unfitness would have
been relevant. But the relevance would have been only to the extent that it still

32
 IV. PLAINTIFF’S BURDEN OF PROOF ON REMAND

Given our conclusion that Mason incorrectly interpreted MCL 722.25(1),

we remand this case for reevaluation under the correct legal standards.62 On

remand, the circuit court shall conduct a new best interests hearing in which it

must consider all relevant, up-to-date information.63 At that hearing, the court

shall apply MCL 722.25(1) in defendant’s favor. The court shall not grant custody

to plaintiffs unless plaintiffs demonstrate by clear and convincing evidence that

custody with defendant does not serve the children’s best interests.64 In order to

affected the best interests of the children. Justice Corrigan states that defendant’s
current fitness may certainly be given weight during the best interests analysis.
Post at 20 n 14. Yet she would make the initial admission of unfitness dispositive
of which presumption controls when an established custodial environment has
been established and “when a parent’s lack of fitness continues over time.” Post
at 20 n 13. This case is an apt illustration of how such an analysis begs the
question. Is the establishment of the established custodial environment due to the
parent’s unfitness sufficient in itself? It would appear not, because the parent’s
lack of fitness must also “continue[] over time.” In this case, has defendant’s
“lack of fitness,” diminished as the probate court found it to be, extended over a
long enough time? How much time must a parent be unfit, and how unfit must he
or she be?
62
Defendant’s remaining arguments claim that the circuit court abused its
discretion by finding her to be an unfit parent and in evaluating the best interests
factors in MCL 722.23. Given that we are remanding this case for a new best
interests hearing, we decline to address these arguments.
63
Fletcher, 447 Mich at 889.
64
Under the CCA, the court is not required to award custody to either
party. Thus, if the plaintiffs do not meet the requisite burden of proof in this
custody action, the court has the authority to keep the guardianship intact without
awarding custody to either party. That is, on remand, the court could do a number
of different things, including, but not limited to: (a) “[a]ward the custody of the

33
make this showing, plaintiffs must prove that “all relevant factors, including the

existence of an established custodial environment and all legislatively mandated

best interest concerns within [MCL 722.23], taken together clearly and

convincingly demonstrate that the child’s best interests require placement with the

third person.”65

V. CONCLUSION

We hold that the established custodial environment presumption in MCL

722.27(1)(c) must yield to the parental presumption in MCL 722.25(1). The

parental presumption can be rebutted only by clear and convincing evidence that

custody with the natural parent is not in the best interests of the child. We also

hold that MCL 722.25(1) satisfies constitutional scrutiny under Troxel. Due

process does not require a threshold determination of parental fitness in custody

cases. The Court of Appeals decision in Mason v Simmons is overruled. We

reverse the judgment of the Court of Appeals and remand this case to the circuit

court for a new best interests hearing. We do not retain jurisdiction. Finally,

child[ren] to 1 or more of the parties involved or to others,” MCL 722.27(1)(a); (b)
maintain the status quo; or (c) “[t]ake any other action considered to be
necessary,” MCL 722.27(1)(e). As noted earlier in this opinion, the defendant-
mother cannot circumvent the existing guardianship order by initiating a custody
action. Rather, the only action she may initiate is to terminate the guardianship
under MCL 700.5208.
65
Heltzel, 248 Mich App at 27. In this way, the established custodial
environment is still given weight in the court’s analysis and ultimate decision.
Therefore, we do not believe this holding “minimize[s] the importance that the
CCA’s terms place on the established custodial environment.” Post at 16 n 11.

34
defendant’s motion to preserve the confidentiality of the psychiatric evaluation

report is granted. The report shall be removed from the copies of the plaintiffs’

appendix and placed under seal.

Marilyn Kelly
Michael F. Cavanagh
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

35
 STATE OF MICHIGAN

SUPREME COURT

ROBERT HUNTER and LORIE HUNTER,

Plaintiffs-Appellees,

v No. 136310

TAMMY JO HUNTER,

Defendant-Appellant,

and

JEFFREY HUNTER

Defendant.

BEFORE THE ENTIRE BENCH

WEAVER, J. (concurring in part and dissenting in part).

I join in the reversal of the Court of Appeals result and in the remand of this

case to the trial court for a new best interests hearing for the reasons stated in the

following parts of Chief Justice Kelly’s majority opinion and Justice Corrigan’s

partially concurring and partially dissenting opinion, which are as follows:

With respect to Chief Justice Kelly’s majority opinion, I join in parts I, II,

III(B), and III(D).

With respect to Justice Corrigan’s partially concurring and partially

dissenting opinion, I join in part III, with the exception of footnote 12.

Elizabeth A. Weaver
 STATE OF MICHIGAN

SUPREME COURT

ROBERT HUNTER and LORIE HUNTER,

Plaintiffs-Appellees,

v No. 136310

TAMMY JO HUNTER,

Defendant-Appellant,
and

JEFFREY HUNTER,

Defendant.

BEFORE THE ENTIRE BENCH

CORRIGAN, J. (concurring in part and dissenting in part).

I concur in parts I, II, III(B), and III(D) of the majority opinion. I agree

with the majority’s conclusion that “fit” parents benefit from a constitutional

presumption that they will “act in the best interests of their children.” Troxel v

Granville, 530 US 57, 68; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (plurality

opinion of O’Connor, J.); see ante at 13-14. I further agree that, when prior court

proceedings govern child custody—such as child protective proceedings under the

Juvenile Code, MCL 712A.1 et seq., or, as in this case, guardianship proceedings

under Part 2 of Article V of the Estates and Protected Individuals Code (EPIC),

MCL 700.5201 et seq.,—these proceedings generally have preclusive effect and

the prior court has superior jurisdiction. A parent cannot circumvent these
proceedings by seeking custody under the Child Custody Act (CCA), MCL 722.21

et seq. See ante at 30-31.

I do not agree with the majority that the constitutional presumption in favor

of fit parents imbues the presumption in MCL 722.25(1) of the CCA—which

applies to all parents, not just fit ones—with heightened constitutional meaning so

that it always prevails over the mandate concerning established custodial

environments in MCL 722.27(1)(c). I do agree that constitutional considerations

require the presumption in § 5(1) to predominate in the case of a fit parent.

However, when a parent’s lack of fitness has been previously established or

admitted and a third party has an established custodial environment with the child,

that parent should not benefit from the presumption in § 5(1). Section 7(1)(c)

governs instead.

I. PROCEDURAL BACKGROUND

As the majority explains in part, ante at 2-7, this case began in 2002 when

defendant and her husband—who were drug-addicted, unemployed, and unable to

care for their four young children—voluntarily relinquished custody of the

children to plaintiffs. Plaintiffs, who are the children’s aunt and uncle, had already

been caring for the children intermittently. In November 2002, defendant and her

husband petitioned the court1 to appoint plaintiffs as limited guardians for the

1
The majority observes that all proceedings in this case took place in the
Oakland Circuit Court although there were two separate cases: the probate court
guardianship case and the circuit court CCA case. It is helpful to note that the
Family Division of the Oakland Circuit Court and the Oakland County Probate

2
children, stating: “We are currently in active addiction to crack cocaine and are

unable to care for our children until we seek treatment.” Accordingly, they

voluntarily suspended their parental rights and the court established a limited

guardianship with plaintiffs. Plaintiffs thus gained rights and responsibilities akin

to those of a parent with regard to the children under MCL 700.5215, which states,

in most pertinent part: “A minor’s guardian has the powers and responsibilities of

a parent who is not deprived of custody of the parent’s minor and unemancipated

child . . . .” See MCL 700.5206(4).2

Court share jurisdiction over selected matters pursuant to a concurrent jurisdiction
plan authorized by MCL 600.406. Thus, although probate courts generally have
jurisdiction over guardianship proceedings and circuit courts have jurisdiction
over CCA proceedings, all the proceedings between the parties in this case
effectively took place before the same court. Even absent a concurrent jurisdiction
plan, the probate judge assigned to a guardianship matter must be assigned to
serve as the circuit court judge in a subsequent CCA case brought by the
guardians. MCL 722.26b(5). Here Judge Eugene A. Moore presided over the
guardianship proceedings but later disqualified himself in the CCA matter. The
CCA proceedings were ultimately presided over by Judge Linda S. Hallmark.
Judges Moore and Hallmark are both Oakland County Probate Court judges
assigned to the Family Division of the Oakland Circuit Court.
2
By design, limited guardianships give parents the opportunity to correct
whatever conditions led them to give up custody of their children and to regain
custody upon proof of compliance with a limited guardianship placement plan.
MCL 700.5205(2). A parent has the right to petition to terminate the limited
guardianship under MCL 700.5208 and, if the parent has “substantially complied”
with the placement plan, the court must terminate the guardianship. MCL
700.5209(1). A limited guardian also may not seek full custody of a child under
the CCA if the parent substantially complies with the placement plan. MCL
722.26b(2). Before establishing a limited guardianship, however, the parent must
also be informed that, if he fails without good cause to comply with the placement
plan, his parental rights may be terminated under the Juvenile Code. MCL
700.5205(2).

3
 Defendant could have regained custody of the children by substantially

complying with her placement plan, in which she promised to seek drug treatment

and provide a drug-free household for the children. Instead, she and her husband

continued their drug use and became involved in crime. Although they petitioned

to terminate the limited guardianship in May 2003, the court denied their petition

and, instead, ordered them to continue drug treatment, verify their employment,

and maintain more regular visitation with the children. Nonetheless, they returned

to crime. They were arrested. After being released on bail, they stole a car and

fled the police.

In June 2003, plaintiffs petitioned the court to appoint them full guardians.3

Plaintiffs cited their fear for the children’s safety and stated that the police advised

them to seek a full guardianship and suspension of parental visits. The court-

appointed guardian ad litem for the children investigated and confirmed that

defendant and her husband were still using drugs, had lost their jobs, were not

paying rent, and had fled the police. On June 17, 2003, the court conducted a

hearing on plaintiffs’ petition. Neither parent appeared and their whereabouts

were unknown. The court suspended their visitation rights until further order. On

July 16, 2003, the court appointed plaintiffs full guardians of the children.

Defendant and her husband were subsequently rearrested and incarcerated.

Defendant apparently skipped bail again after her second release. She was
3
MCL 700.5204(3) empowers a limited guardian to seek appointment as a
full guardian as long as the petition is not based merely on the suspension of
parental rights incident to the limited guardianship petition.

4
ultimately convicted and imprisoned in August 2004. In July 2005, after her

release from prison, defendant sought visitation with her children. By this time

she had not seen them in over two years. The court restored her visitation rights in

November 2005 and defendant began paying a small amount of child support.

After several months of successful visits and regular child support payments, the

court ordered expanded, unsupervised parenting time to begin in May 2006, with

overnight visits at defendant’s home in Indiana to begin in July 2006. By this

time, the children had been living with plaintiffs in Michigan for about four years.

In May 2006, apparently prompted by the order increasing defendant’s

visitation rights, plaintiffs exercised their rights under MCL 722.26b to seek

custody under the CCA and to stay the guardianship proceedings. MCL

722.26b(4). Defendant counterclaimed for custody under the CCA. The court

employed the now-outdated rubric in Mason v Simmons, 267 Mich App 188; 704

NW2d 104 (2005), to declare defendant unfit and award custody to plaintiffs.4

II. SUPERIOR JURISDICTION OF PRIOR PROCEEDINGS

First, I agree that the guardianship proceedings here precluded defendant

from separately seeking custody under the CCA. Ante at 30-31. Generally, when

two courts have concurrent jurisdiction, the first court that acquired jurisdiction

retains it until the matter is fully resolved. See Schell v Schell, 257 Mich 85, 88;

4
I concur in the majority’s conclusion that Mason improperly created a
preponderance of the evidence standard “out of thin air,” ante at 26, where the text
of the CCA includes no such standard.

5
241 NW 223 (1932).5 Accordingly, if a parent’s fitness or custody rights are

governed by an ongoing proceeding—such as the guardianship proceeding here or

a child protective proceeding under the Juvenile Code—the parent may not

separately invoke the circuit court’s jurisdiction by filing a simultaneous custody

action under the CCA.

Because this holding is a crucial element of the majority opinion, I offer an

example to illustrate the importance of this jurisdictional rule. Child protective

proceedings under the Juvenile Code are designed to protect children from abuse

and neglect—often by temporarily removing them from their parents’ custody

under emergency conditions—while aiding parents to rectify unfit conditions and

regain custody of their children. The purposes of these proceedings would be

5
The longstanding rule concerning concurrent jurisdiction was aptly
described in Schell where, as here, the circuit court was called upon to decide a
custody issue. Significantly, in Schell, prior probate court proceedings concerning
the child appear to have been abandoned and effectively closed. Accordingly, this
Court held:

As stated by Mr. Justice COOLEY in [Maclean] v. Wayne
Circuit Judge, 52 Mich. 257 [259; 18 NW 396]:

“It is a familiar principle that when a court of competent
jurisdiction has become possessed of a case, its authority continues,
subject only to appellate authority, until the matter is finally and
completely disposed of; and no court of co-ordinate authority is at
liberty to interfere with its action.”

The circuit court and the probate court, juvenile division, had
concurrent jurisdiction. The former court having acquired it first,
retained it. [Schell, supra, 257 Mich 88 (emphasis added).]

6
nullified if a parent could avoid them by regaining custody in a separate

proceeding under the CCA.

The Juvenile Code protects children who, among other things, are subjected

to abuse, neglect, or unfit living conditions. MCL 712A.2(b).6 The code

empowers the Department of Human Services (DHS) to petition for temporary

removal of a child from his parent’s home for these reasons. The court may

authorize the petition “upon a showing of probable cause that 1 or more of the

allegations in the petition are true and fall within the provisions of section

2(b) . . . .” MCL 712A.13a(2). If the court orders the child’s removal from the

parent’s custody and orders the child into court or state custody, a process begins

during which the DHS works with the parent, if possible, to restore custody with

the parent.7 As I will explain further, this process is statutorily designed to take up

6
The most relevant provisions of MCL 712A.2(b) confer court jurisdiction
over a child:

(1) Whose parent or other person legally responsible for the
care and maintenance of the juvenile, when able to do so, neglects or
refuses to provide proper or necessary support, education, medical,
surgical, or other care necessary for his or her health or morals, who
is subject to a substantial risk of harm to his or her mental well-
being, who is abandoned by his or her parents, guardian, or other
custodian, or who is without proper custody or guardianship. . . .

***
(2) [Or, w]hose home or environment, by reason of neglect,
cruelty, drunkenness, criminality, or depravity on the part of a
parent, guardian, nonparent adult, or other custodian, is an unfit
place for the juvenile to live in.
7
Various protections address the parent’s due process rights throughout the
proceedings, including rights to notice, to participate in all proceedings, see MCL

7
to one year. See MCL 712A.19a(1). Within 30 days of the child’s removal, and

every 90 days thereafter, the DHS must provide service plans detailing its efforts

and the services provided to prevent removal or to rectify the conditions that

caused removal, as well as the efforts to be made and services to be offered to

facilitate the child’s return to his parent, if appropriate. MCL 712A.18f. The

court generally reviews the case within 182 days of the child’s removal and every

91 days thereafter. MCL 712A.19(3). At each review hearing, the court must

evaluate the parent’s compliance with the service plan, MCL 712A.19(6) and (7),

and may order additional services or actions. MCL 712A.19(7)(a).

If a child remains outside his home, the court must conduct a permanency

planning hearing within one year of the child’s removal. MCL 712A.19a(1). At

that hearing, if the court determines that the “return of the child to his or her parent

would not cause a substantial risk of harm to the child’s life, physical health, or

mental well-being, the court shall order the child returned to his or her parent.”

MCL 712A.19a(5). If the court determines that the parent poses a substantial risk

to the child, it may order the DHS to initiate proceedings to terminate parental

rights. MCL 712A.19a(6). If termination is not in the child’s best interests, the

court may also consider alternative placement plans, including a guardianship.

MCL 712A.19a(7). Crucially, the burden of proof is elevated to clear and

712A.19(5)(c), MCL 712A.19a(4)(c), and MCL 712A.19b(2)(c), and to an
attorney at each stage of the proceedings, MCL 712A.17c(4) and (5).

8
convincing evidence only at this final stage, the termination of parental rights

proceeding. MCL 712A.19b(3).

Because of the different evidentiary standards in the CCA and the Juvenile

Code, a parent could subvert child protective proceedings if the Schell rule did not

mandate superior jurisdiction in the child protective proceedings. This is because,

as noted, the requisite conditions for removal of a child from his parent’s custody

under MCL 712A.2(b) of the Juvenile Code must be proved by “a showing of

probable cause,” MCL 712A.13a(2). But, particularly under the majority’s

interpretation of the CCA, the DHS or a third party custodian can prevent a parent

from regaining custody under the CCA only by rebutting the parental presumption

by clear and convincing evidence. MCL 722.25(1). Because the CCA creates a

higher burden for a third party seeking custody, the parent could regain custody

under the CCA; while the initial conditions warranting emergency removal may

have been supported by probable cause, the DHS may not yet have gathered

enough evidence to meet the heightened clear and convincing evidence standard

of the statutory presumption in MCL 722.25(1), as would be necessary to prevent

the parent from immediately regaining custody. Thus, if the parent could seek

custody under the CCA, the Legislature’s carefully crafted child protective

process—which both protects children and ultimately benefits willing parents—

could be nullified.

A related problem involving guardianships would arise if a parent could

invoke the court’s jurisdiction under the CCA although the parent’s rights were

9
eligible for termination under the Juvenile Code. Indeed, although the court may

conclude that a child should not be returned to his parent because the parent poses

an ongoing substantial risk of harm, the court may place the child with a

permanent guardian in lieu of terminating the parent’s rights. MCL 712A.19a(6)

and (7)(c). That guardianship may continue until the child is emancipated, MCL

712A.19a(7)(c), and the guardian gains all the traditional parent-like rights and

duties inherent in a guardianship established under the EPIC. MCL 712A.19a(8).

If the natural parent could nonetheless obtain custody under the CCA, the

purposes and terms of these pre-termination guardianships would be obviated.

Particularly under the majority’s rule, the parent could file under the CCA to shift

the burden to the guardian, thereby requiring the guardian to prove by clear and

convincing evidence that placement with the parent is not in the child’s best

interests. The court’s determination during the child protective proceedings that

the parent posed a significant harm to his child would become irrelevant and the

guardian would be forced to litigate in defense of his appointment. In addition to

subverting the statutory scheme in favor of pre-termination guardianships, this

result likely would cause voluntary guardians to decide against accepting

guardianship appointments.8

In sum, important, practical reasons undergird the Schell rule and the

principles of collateral estoppel addressed by the majority. Once a court attains
8
Indeed, the EPIC’s guardianship schemes could be effectively nullified,
generally, if a parent could avoid ongoing guardianship proceedings by simply
filing for custody under the CCA.

10
jurisdiction of a child’s custody under the Juvenile Code or the EPIC, as the first

court to attain jurisdiction over these matters, it retains jurisdiction until the

proceeding is closed. Schell, supra, 257 Mich at 88. A parent cannot simply file

separately for custody under the CCA and regain custody by invoking the parental

presumption. Permitting a parent to do so would undermine the very purposes of

the other statutory schemes addressing custody and child welfare, not to mention

the havoc and confusion in courts attempting to properly protect children and

adjudicate parental rights under the correct statutes.

Finally, the CCA itself confirms this result by providing a single, explicit

exception to the normal application of the Schell rule. MCL 722.26b, which

grants a guardian standing to seek custody under the CCA, provides the only

apparent context in which a CCA action may override decisions of another court

with ongoing jurisdiction over the parties’ rights to the children.9 MCL

722.26b(4) explicitly states that, when a guardian seeks custody, “guardianship

proceedings concerning that child in the probate court are stayed until disposition

of the child custody action” and permits an ensuing circuit court order to

supersede probate court orders concerning the guardianship of the child. The

CCA does not, in turn, permit a parent with the limited rights inherent in

guardianship proceedings to sue for custody or stay the guardianship proceedings.
9
To be clear, although the CCA generally cannot be used to override other
proceedings, the CCA is often properly employed incident to other proceedings
when appropriate. For example, custody actions may “arise[] incidentally from
another action in the circuit court or an order or judgment of the circuit court,”
MCL 722.27(1), including a divorce action.

11
Rather, as the majority notes, a parent’s recourse would lie in his explicit right to

petition the probate court to terminate the guardianship under MCL 700.5208.

III. SECTIONS 5(1) AND 7(1)(c) OF THE CHILD CUSTODY ACT

Although I agree with the majority on the point just discussed, I disagree

with the majority’s resolution of the apparent conflict between MCL 722.25(1)

and MCL 722.27(1)(c) as it applies here, where the guardians invoked MCL

722.26b. I certainly agree with the majority, ante at 9, that the “fundamental

liberty interest of natural parents in the care, custody, and management of their

child does not evaporate simply because they have not been model parents or have

lost temporary custody of their child to the State.” Santosky v Kramer, 455 US

745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). And thus, to satisfy

constitutional due process standards, the state “must provide the parents with

fundamentally fair procedures.” Id. at 754; and see ante at 9. But, when a

parent’s unfitness has been established, as it was here, fundamentally fair

procedures do not require the court to give that parent the full benefit of the

parental presumption. Rather, a parent’s rights to a child are limited when he has

failed in his duties to that child. In the majority’s own words, neither Troxel nor

the majority opinion “grant[s] unfit parents constitutional rights to their children

other than due process rights.” Ante at 30 (emphasis added).

Thus, the presumption that a parent will act in his child’s best interests is a

conditional presumption that applies only “so long as a parent adequately cares

for” his child. Troxel, supra, 530 US 68 (O’Connor, J.). Indeed, the parental right

12
derives from a parent’s ‘high duty’ to care for his children. Id. (citation omitted).10

Accordingly, when a parent fails to care adequately for his child—and particularly

10
In accord, historically this Court has recognized that parental rights do
not derive from mere biology or exist independently from parental duties. As we
explained in In re Gould, 174 Mich 663, 669-670; 140 NW 1013 (1913):

The law recognizes the rights of the father because it
recognizes the natural duties and obligations of the father. The
father’s right to and authority over his child are secure and inviolable
so long as he properly discharges the correlative duties.

But the absolute power of the father over his infant children,
to treat them as property and dispose of them as he sees fit because
they are his, which was once recognized under the Roman law of
patria potestas and in the codes of early nations, no longer obtains.
Paternal authority is subordinate to the supreme power of the State.
Every child born in the United States has, from the time it comes into
existence, a birthright of citizenship which vests it with rights and
privileges, entitling it to governmental protection—

“And such government is obligated by its duty of protection,
to consult the welfare, comfort, and interests of such child in
regulating its custody during the period of its minority.” Mercein v.
People, 25 Wend. (N. Y.) 64 (35 Am. Dec. 653).

The power of parental control, though recognized as a
natural right and protected when properly exercised, is by no means
an inalienable one. When the “right of custody” is involved
between respective claimants for a child, the courts, though in the
first instance recognizing prima facie rights of relationship, in the
final test are not strictly bound by demands founded upon purely
technical claims or naked legal rights, but may and should, in
making the award, be governed by the paramount consideration of
what is really demanded by the best interests of the child. [Emphasis
added.]

Thus Gould emphasized that a child’s rights to be protected from abuse and
neglect inform and limit a parent’s rights. As we reiterated 50 years later in
Herbstman v Shiftan, 363 Mich 64, 67-68; 108 NW2d 869 (1961):

A child also has rights, which include the right to proper and
necessary support; education as required by law; medical, surgical

13
when third parties carry out the parent’s high duty in his stead—the automatic

presumption in favor of the parent no longer strictly applies. Therefore, although

fit parents benefit from a constitutional presumption that they will “act in the best

interests of their children,” Troxel, supra, 530 US 68, ante at 13-14 the

constitutional presumption in favor of fit parents does not imbue the presumption

in § 5(1) of the CCA with heightened constitutional meaning so that it always

prevails over the mandate concerning established custodial environments in §

7(1)(c) without regard to a parent’s fitness.

MCL 722.25(1) states that if a child custody dispute “is between the parent

or parents and an agency or a third person, the court shall presume that the best

interests of the child are served by awarding custody to the parent or parents,

unless the contrary is established by clear and convincing evidence.” But the

powers of the circuit court in any action under the CCA are also governed by

MCL 722.27, which circumscribes the orders a court may enter regarding a

complaint for custody. MCL 722.27(1) states, in pertinent part:

If a child custody dispute has been submitted to the circuit
court as an original action under this act or has arisen incidentally

and other care necessary for his health, morals, or well-being; the
right to proper custody by his parents, guardian, or other custodian;
and the right to live in a suitable place free from neglect, cruelty,
drunkenness, criminality, or depravity on the part of his parents,
guardian, or other custodian. It is only when these rights of the child
are violated by the parents themselves that the child becomes subject
to judicial control. A parent having violated the rights of a child
forfeits his right to the custody, control and upbringing of that child;
and when the safety and best interests of the child demand it, the
rights of the child must be protected by the court. [Emphasis added.]

14
 from another action in the circuit court or an order or judgment of
the circuit court, for the best interests of the child the court may do 1
or more of the following:

(a) Award the custody of the child to 1 or more of the parties
involved or to others and provide for payment of support for the
child, until the child reaches 18 years of age. . . .

(b) Provide for reasonable parenting time of the child by the
parties involved, by the maternal or paternal grandparents, or by
others, by general or specific terms and conditions. . . .

(c) Modify or amend its previous judgments or orders for
proper cause shown or because of change of circumstances . . . . The
court shall not modify or amend its previous judgments or orders or
issue a new order so as to change the established custodial
environment of a child unless there is presented clear and convincing
evidence that it is in the best interest of the child. The custodial
environment of a child is established if over an appreciable time the
child naturally looks to the custodian in that environment for
guidance, discipline, the necessities of life, and parental comfort.
The age of the child, the physical environment, and the inclination of
the custodian and the child as to permanency of the relationship shall
also be considered. . . .

(d) Utilize a guardian ad litem or the community resources in
behavioral sciences and other professions in the investigation and
study of custody disputes and consider their recommendations for
the resolution of the disputes.

(e) Take any other action considered to be necessary in a
particular child custody dispute. [MCL 722.27(1).]

Subsection 7(1)(c) clearly mandates that the court “shall not modify or amend its

previous judgments or orders or issue a new order so as to change the established

custodial environment of a child unless there is presented clear and convincing

15
evidence that it is in the best interest of the child.”11 (Emphasis added.) Thus, §

(7)(1)(c) expressly deprives the court of the power to change the established

custodial environment absent the requisite showing by clear and convincing

evidence that such a change is in the child’s best interest.12 Yet the majority

11
The majority opines that “no constitutional protections for third persons
underlie the established custodial environment presumption in MCL
722.27(1)(c).” Ante at 15. This may be so. But we should not minimize the
importance that the CCA’s terms place on the established custodial environment,
which serves a child’s needs. Indeed, an “established custodial environment” is
defined in terms similar to those used to describe a child’s “rights and privileges
entitling it to governmental protection,” which obligate the government “to consult
the welfare, comfort, and interests of such child in regulating its custody during
the period of its minority.” Gould, supra, 174 Mich at 670 (internal quotation
marks and citation omitted). An established custodial environment exists under §
7(1)(c) “if over an appreciable time the child naturally looks to the custodian in
that environment for guidance, discipline, the necessities of life, and parental
comfort.” Compare the rights of a child listed by Herbstman, supra, 363 Mich at
67: “proper and necessary support; education as required by law; medical,
surgical, and other care necessary for his health, morals, or well-being; the right to
proper custody by his parents, guardian, or other custodian . . . .”
12
My conclusions here stem from my willingness to agree, for purposes of
this analysis, with the majority’s assumption that MCL 722.25(1) and MCL
722.27(1)(c) “irreconcilably conflict” when a parent seeks custody from a third
party with an established custodial environment, ante at 26; both provisions appear
to mandate action from the court, stating respectively that “the court shall presume
that the best interests of the child are served by awarding custody to the parent,” §
5(1), and that “[t]he court shall not . . . change the established custodial
environment of a child unless there is presented clear and convincing evidence that
it is in the best interest of the child,” § 7(1)(c). (Emphasis added.) Yet because §
7 broadly circumscribes the circuit court’s power in all cases under the CCA, I
would be more inclined to hold that the prohibition on changing an established
custodial environment in § 7(1)(c) clearly controls, as a textual matter, whenever
the terms of both § 5(1) and § 7(1)(c) apply in a given case. I do not agree with
the majority that, through § 5(1), the Legislature clearly intended to “offer[]
greater protection [than is required by the constitution] to the fundamental
parenting rights of natural parents, regardless of whether the natural parents are
fit.” Ante at 28. Nevertheless, my observations concerning the textual dominance
of 7(1)(c) are largely inapposite to my overall conclusion; I am persuaded that, if

16
directs circuit courts to ignore this mandate in all cases where any natural parent—

except one whose parental rights were previously terminated or suspended, ante at

31—seeks custody from a third party with an established custodial environment.

But in light of the strong mandate expressed in § 7(1)(c), and because the

constitutional parental presumption applies only to fit parents, I would hold that

the presumption in § 5(1) prevails over the mandate in § 7(1)(c) by necessity only

when a fit parent seeks custody from a third person with an established custodial

environment. Where an unfit parent is concerned, no statutory or constitutional

reason exists to simply ignore § 7(1)(c) if a third person has an established

custodial environment.

Further, because the constitutional parental presumption applies only to fit

parents, a parent’s fitness remains relevant. I acknowledge that the CCA does not

refer to fitness, see ante at 27. But this bare observation does not adequately

consider the various proceedings at which a parent’s fitness may be questioned—

indeed, it does not consider the very proceedings that likely led to a custodial

environment being established with a third party custodian in the first place.

Troxel equated a fit parent with one who “adequately cares for his or her

children.” Troxel, supra, 530 US 68 (O’Connor, J.). It illustrated the presumption

in favor of fit parents as “a presumption that parents possess what a child lacks in

maturity, experience, and capacity for judgment required for making life’s difficult

a fit parent’s custody interests are opposed to those of a third party with an
established custodial environment, the parent should benefit from a parental
presumption as a matter of constitutional right.

17
decisions.” Id. at 68 (internal quotation marks and citation omitted). Various

proceedings call upon courts to make findings, or call upon parents to make

admissions, counter to these presumptions in order to fulfill the state’s duties to

protect its children. The child protective proceedings described above and

guardianship proceedings like this case are good examples of proceedings that, by

their nature, may establish a parent’s unfitness. Principles of collateral estoppel

generally prevent a party from relitigating an issue already established in a prior

proceeding. See Storey v Meijer, Inc, 431 Mich 368, 373 n 3; 429 NW2d 169

(1988). Indeed, as the majority observes, this Court has “long recognized” the

applicability of collateral estoppel, including to “probate courts orders such as the

guardianship orders in this case.” Ante at 31, citing Chapin v Chapin, 229 Mich

515; 201 NW 530 (1924). Such orders “are res judicata of the matters involved

and cannot be attacked collaterally.” In re Ives, 314 Mich 690, 696; 23 NW2d 131

(1946). Further, permitting a parent to avoid past findings or admissions of

unfitness and nonetheless gain a constitutional advantage despite unfitness clearly

runs the risk of endangering the child and compromising state laws aimed at

upholding the state’s duties to its child citizens. Most significant to our purposes,

if a parent’s lack of fitness has been established, there is no longer a constitutional

reason to ignore the mandate in MCL 722.27(1)(c) in favor of MCL 722.25(1).

Accordingly, I conclude that in cases where a parent’s lack of fitness was either

18
determined or admitted in a prior proceeding, the parent cannot later claim fitness

and benefit from the presumption in § 5(1) in a proceeding under the CCA.13

13
The majority states that my approach is contrary to Fletcher v Fletcher,
447 Mich 871, 889; 526 NW2d 889 (1994), which required the trial court on
remand to consider “up-to-date information” and “any other changes in
circumstances” when awarding custody. See ante at 32 n 61. I have no objection
to the Fletcher Court’s requirement, which applied to the trial court’s
consideration of the best interests factors in MCL 722.23. But I disagree with the
majority’s assertion that Fletcher precludes a trial court from taking into account a
past finding of unfitness when determining whether the presumption in MCL
722.25(1) must prevail over the mandate in MCL 722.27(1)(c) as a constitutional
matter. Fletcher addressed only the best interests determination on remand in light
of the fact that circumstances may change during the appellate process. See
Fletcher, supra 447 Mich at 888-889. Indeed, it expressly prohibited
reconsideration of the threshold question whether any party had an established
custodial environment for purposes of applying § 7(1)(c). Id. at 889 n 10 (“We do
not suggest that the events which have taken place during the appellate process
give rise to an ‘established custodial environment’ that . . . alters the burden of
proof in favor of the party who has enjoyed custody during the appeal.”). In no
way did Fletcher suggest that the threshold issue of a parent’s past, admitted
unfitness should be reconsidered over time in order to alter the burden of proof.

The majority further states that I would “make the initial admission of
unfitness dispositive” although defendant “was fulfilling increasing duties to her
children and gaining increased visitation time.” Ante at 32 n 61. First, I would
note that—just as the majority asserts that the established custodial environment
may be given weight when the court considers the best interests factors, ante at 34
n 65—defendant’s current, apparently increasing ability to care for her children
should certainly be given weight during this process. Second, to the extent that the
majority suggests that a past admission of unfitness should not be dispositive
because defendant’s lack of fitness here diminished and should be reconsidered
over time, I note that defendant admitted her unfitness in 2002, had no contact
with her children at all for approximately two years during 2003-2005, was
released from prison in July 2005 and had been back in contact with her children
for only about six months when plaintiffs filed their complaint for custody in May
2006. By this time, the children had been living with plaintiffs in Michigan for
about four years. Accordingly, I emphasize my conclusion that a past admission
of unfitness is not dispositive in itself. Rather, by its terms the mandate in §
7(1)(c)—which circumscribes the court’s power to “[m]odify or amend its
previous judgments or orders” and specifically to “modify or amend its previous
judgments or orders or issue a new order so as to change the established custodial

19
 Here, defendant and her husband admitted unfitness in 2002 when they

sought the limited guardianship because they were jobless, addicted to crack, and

unable to care for their children. They could have regained custody of the children

by substantially complying with their placement plan. Instead, they relapsed,

continued their involvement with crime, and failed to appear at the hearing on

plaintiffs’ petition to establish a full guardianship.14 Under these circumstances,

defendant’s unfitness was clearly established at prior proceedings. Indeed,

defendant admitted her unfitness and willfully forewent her statutorily granted

right to regain custody despite the admission. Defendant further could have

challenged the results of the guardianship proceedings by appealing, but she did

not do so. The court should not now be directed to sweep such findings and

admissions under the rug by applying a constitutional presumption in favor of fit

environment”—controls only when a prior admission of unfitness led to additional
circumstances and court orders creating an established custodial environment with
a third party. Indeed, by definition, the prohibition on changing the established
custodial environment in § 7(1)(c) applies only when a parent’s lack of fitness
continues over time so that third parties take on the parental role and establish a
custodial environment—such an environment is established only if “over an
appreciable time the child naturally looks to the custodian in that environment for
guidance, discipline, the necessities of life, and parental comfort.” MCL
722.7(1)(c) (emphasis added).

14
Plaintiffs aptly observe that defendant’s lack of fitness was the direct
cause of their appointment as guardians—a status that bestows rights akin to
parental rights. MCL 700.5215. They further note that defendant’s absence from
her children’s lives thus created the very established custodial environment with
plaintiffs that defendant now seeks to delegitimize by applying the constitutional
presumption in favor of fit parents.

20
parents in an action involving the very people who cared for defendant’s children

in the face of her parenting failures. For these reasons I conclude that when, as

here, a third party establishes a custodial environment after proof of a parent’s

unfitness, the procedure for changing an established custodial environment

mandated by MCL 722.27(1)(c) controls.

IV. CONCLUSION

In conclusion, I agree with the majority that a fit parent who properly seeks

custody under the CCA benefits from the parental presumption in MCL 722.25(1).

But, contrary to the majority, I would conclude that, where a parent’s lack of

fitness is established, MCL 722.27(1)(c) controls if a third party has an established

custodial environment for the children.

Further, if parental or custody rights are governed by other proceedings, a

parent is precluded from using the CCA as an end run around such proceedings;

rather, the first court to gain jurisdiction over these matters retains jurisdiction.

The CCA provides a single exception to this rule in MCL 722.26b, which

plaintiffs properly invoked in this case and which permits guardians to seek

custody although guardianship proceedings are ongoing. But, finally, I agree with

the majority that even when a custody action is properly filed under § 6b as here,

the circuit court is not bound to award custody to any party. Instead, it has broad

discretion to act “for the best interests of the child . . . .” MCL 722.27(1).

Accordingly, the court in its discretion may dismiss plaintiffs’ custody action in

light of plaintiffs’ apparent attempt to subvert the ongoing guardianship

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proceedings in which defendant was fulfilling increasing duties to her children and

gaining increased visitation time.

Maura D. Corrigan

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