Harvey v. Harvey

Michigan Supreme Court
Lansing, Michigan

Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JUNE 9, 2004

SHEILA HARVEY,

Plaintiff-Appellee,

v No. 124234

HARRY LOUIS HARVEY,

Defendant-Appellant.
_______________________________

PER CURIAM

In this divorce proceeding, the parties agreed that

the friend of the court would determine the custody of

their children and that the circuit court could not review

the decision. Honoring this, the circuit court entered the

friend of the court’s recommended order awarding sole

custody of the children to defendant and denied plaintiff’s

motion for a hearing to review the matter.

The Court of Appeals vacated the circuit court’s order

and remanded the case for a hearing de novo. We affirm

that opinion, but write to provide clarification.

Regardless of the type of alternative dispute resolution
that parties use, the Child Custody Act1 requires the

circuit court to determine independently what custodial

placement is in the best interests of the children.2 We

write to clarify the responsibility of the trial court in

making that determination.

I. BACKGROUND

A. Trial Court Proceedings

Two daughters were born during the parties’ marriage,

one in 1994 and the other in 1996. In February 2000,

plaintiff filed a complaint for divorce with the Family

Division of the Oakland Circuit Court. A variety of issues

were disputed, including custody of the children.

Instead of proceeding directly to trial, the parties

opted for a form of alternative dispute resolution. On May

1
MCL 722.21 et seq.
2
We recognize that parents sometimes reach agreements
regarding custody and visitation matters either informally
through direct negotiations or through mediation procedures
made available by dispute resolution organizations. Our
decision does not restrict the ability of parties to
address disputes through alternative dispute resolution
processes. We hold only that the statutory “best
interests” factors control whenever a court enters an order
affecting child custody. An initial agreement between the
parties cannot relieve the court of its statutory
responsibility to ensure that its adjudication of custody
disputes is in a child’s best interests.

Likewise, parties must understand that a child custody
determination resulting from alternative dispute resolution
processes is not enforceable absent a court order.

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15, 2001, the circuit court entered a consent order,

approved by both parties’ counsel, for binding arbitration.

Its object was to resolve all property matters3 and provide

for an evidentiary hearing and binding decision by the

friend of the court referee regarding custody, parenting

time, and child support issues. The order stated that the

referee’s decision could not be reviewed by the circuit

court:

7. Issues of custody, parenting time and
child support shall be referred to the Oakland
County Friend of the Court for an Evidentiary
Hearing in front of a Referee.
8. The decision of the Referee, after
hearing, shall be binding on the parties and
shall not be reviewable by the trial court. The
Appellate rights to the Court of Appeals are
again preserved.
Following an evidentiary hearing, the friend of the

court submitted findings to the circuit court with a

recommended order awarding legal and physical custody of

the children solely to defendant. Plaintiff filed timely

written objections to the order.

The circuit court entered the recommended order, over

plaintiff’s objection, changing the existing custodial

arrangement. The court denied her motion for an

3
The parties subsequently signed a binding arbitration
agreement and arbitrated the marital property issues, which
are not on appeal.

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evidentiary hearing de novo and refused to set aside the

order when defendant argued that the parties’ stipulation

restricted its authority to review the order.

B. Appellate Court Proceedings

Plaintiff appealed as of right. The Court of Appeals

vacated the custody order and remanded for a hearing de

novo in the circuit court.

In its opinion, the Court of Appeals acknowledged that

the Child Custody Act governs all child custody disputes

and gives the circuit court continuing jurisdiction over

custody proceedings. MCL 722.26. The Court discussed two

statutory schemes that operate concurrently with the Child

Custody Act to provide the parties with alternative methods

of dispute resolution: the domestic relations arbitration

act and the Friend of the Court Act. MCL 600.5070 et seq.

and 552.501 et seq.

The domestic relations arbitration act permits parties

to agree to binding arbitration of child custody disputes.

It contains numerous protections for them, including

mandatory prearbitration disclosures and detailed

procedural requirements. MCL 600.5072. The parties can

seek circuit court review of the arbitration award. MCL

600.5080 specifically addresses awards concerning child

custody:

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 (1) Subject to subsection (2), the circuit
court shall not vacate or modify an award
concerning child support, custody, or parenting
time unless the court finds that the award is
adverse to the best interests of the child who is
the subject of the award or under the provisions
of section 5081.

(2) A review or modification of a child
support amount, child custody, or parenting time
shall be conducted and is subject to the
standards and procedures provided in other
statutes, in other applicable law, and by court
rule that are applicable to child support
amounts, child custody, or parenting time.

(3) Other standards and procedures
regarding review of arbitration awards described
in this section are governed by court rule.

A separate provision, MCL 600.5081, generally addresses the

manner in which the circuit court shall review a motion to

vacate or modify an arbitration award.

Alternatively, parties to a custody dispute can

present the issue to a friend of the court referee. If

they elect this option, the circuit court may review the

referee’s recommendation in accordance with MCL 552.507(5).

That subsection provides that the circuit court “shall hold

a de novo hearing on any matter that has been the subject

of a referee hearing” if either party requests such a

hearing within twenty-one days after receiving the

referee’s recommendation.

The Court of Appeals concluded that, under either

statute, the parties were entitled to have the circuit

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court review the custody determination. For this reason,

it held, “an agreement for a binding decision in a

domestic-relations matter with no right of review in the

court, as in this case, is without statutory support under

either scheme.” 257 Mich App 278, 289; 668 NW2d 187

(2003).

The Court then determined that the parties had not

complied with the detailed procedural requirements of the

domestic relations arbitration act. As a consequence, it

held that the parties’ agreement was governed by the Friend

of the Court Act, MCL 552.507(5). The trial court should

have addressed plaintiff’s objections by holding a hearing

de novo to review whether the custody recommendation was in

the best interests of the children. The Court of Appeals

summed up as follows:

In the absence of any review by the trial
court, as discussed above, and in the absence of
a valid agreement for binding arbitration or an
otherwise valid waiver of procedural
requirements, plaintiff was improperly denied a
hearing regarding her objections to the friend of
the court’s findings and recommendation. [257
Mich App 292.]

It vacated the custody order and remanded for a hearing de

novo in the circuit court.

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 Defendant now seeks leave to appeal, asking this Court

to reinstate the custody order awarding him sole legal and

physical custody of the children.

II. STANDARD OF REVIEW

Whether parties to a divorce can by stipulation

restrict the circuit court’s authority to decide a custody

issue is a question of law that we review de novo.

Cardinal Mooney High School v Michigan High School Athletic

Ass'n, 437 Mich 75, 80; 467 NW2d 21 (1991).

III. ANALYSIS

The Child Custody Act is a comprehensive statutory

scheme for resolving custody disputes. Van v Zahorik, 460

Mich 320, 327; 597 NW2d 15 (1999). With it, the

Legislature sought to “promote the best interests and

welfare of children.” Fletcher v Fletcher, 447 Mich 871,

877; 526 NW2d 889 (1994). The act applies to all custody

disputes and vests the circuit court with continuing

jurisdiction. MCL 722.26.

The act makes clear that the best interests of the

child control the resolution of a custody dispute between

parents, as gauged by the factors set forth at MCL 722.23.

MCL 722.25(1). It places an affirmative obligation on the

circuit court to “declare the child’s inherent rights and

establish the rights and duties as to the child’s custody,

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support, and parenting time in accordance with this act”

whenever the court is required to adjudicate an action

“involving dispute of a minor child’s custody.” MCL

722.24(1); Van, supra at 328. Taken together, these

statutory provisions impose on the trial court the duty to

ensure that the resolution of any custody dispute is in the

best interests of the child.

Thus, we affirm the Court of Appeals decision to

remand this case to the circuit court for a hearing de

novo, but not for the reason stated by the Court of

Appeals. It is irrelevant that the parties did not have a

“valid agreement for binding arbitration or an otherwise

valid waiver of procedural requirements . . . .” 257 Mich

App 292. The Child Custody Act required the circuit court

to determine the best interests of the children before

entering an order resolving the custody dispute.

Our holding should not be interpreted, where the

parties have agreed to a custody arrangement, to require

the court to conduct a hearing or otherwise engage in

intensive fact-finding. See MCL 552.513(2) and

600.5080(1). Our requirement under such circumstances is

that the court satisfy itself concerning the best interests

of the children. When the court signs the order, it

indicates that it has done so. A judge signs an order only

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after profound deliberation and in the exercise of the

judge’s traditional broad discretion. See Greene v Greene,

357 Mich 196, 202; 98 NW2d 519 (1959).

However, the deference due parties’ negotiated

agreements does not diminish the court’s obligation to

examine the best interest factors and make the child’s best

interests paramount. MCL 722.25(1). Nothing in the Child

Custody Act gives parents or any other party the power to

exclude the legislatively mandated “best interests” factors

from the court’s deliberations once a custody dispute

reaches the court.

Furthermore, neither the Friend of the Court Act nor

the domestic relations arbitration act relieves the circuit

court of its duty to review a custody arrangement once the

issue of a child’s custody reaches the bench. The Friend

of the Court Act states that the circuit court “shall” hold

a hearing de novo to review a friend of the court

recommendation if either party objects to that

recommendation in writing within twenty-one days. MCL

552.507(5).

Likewise, MCL 600.5080 authorizes a circuit court to

modify or vacate an arbitration award that is not in the

best interests of the child. It requires the circuit court

to review the arbitration award in accordance with the

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requirements of other relevant statutes, including the

Child Custody Act. The court retains authority over

custody until the child reaches the age of majority. MCL

722.27(1)(c).

Thus, even when parties initially elect to submit a

custody dispute to an arbitrator or to the friend of the

court, they cannot waive the authority that the Child

Custody Act confers on the circuit court. As the Court of

Appeals has previously explained, parties “cannot by

agreement usurp the court’s authority to determine suitable

provisions for the child’s best interests.” Lombardo v

Lombardo, 202 Mich App 151, 160; 507 NW2d 788 (1993). See

also Napora v Napora, 159 Mich App 241, 246; 406 NW2d 197

(1986). Permitting the parties, by stipulation, to limit

the trial court’s authority to review custody

determinations would nullify the protections of the Child

Custody Act and relieve the circuit court of its

statutorily imposed responsibilities.

IV. CONCLUSION

We agree with the Court of Appeals that parties cannot

stipulate to circumvent the authority of the circuit court

in determining the custody of children. In making its

determination, the court must consider the best interests

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of the children. Child custody determinations or

agreements are not binding until entered by court order.

The Court of Appeals judgment in favor of plaintiff,

remanding this case to the Family Division of the Oakland

Circuit Court for a hearing de novo is affirmed, but for a

reason different from that stated by that Court. MCR

7.302(G)(1).

Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

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