DeBoer v. Schmidt
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Opinions
Per Curiam.
These two related cases arise out of a child custody dispute involving the competing claims of the child’s natural parents (Cara and Daniel Schmidt) and the third-party custodians with whom the child now lives (Roberta and Jan DeBoer).
While we will deal at length with the various arguments marshaled in support of their claims, we sum up our analysis of the competing arguments by reference to the words of the United States Supreme Court: "No one would seriously dispute that a deeply loving and interdependent relationship with an adult and a child in his or her care may exist even in the absence of blood relationship.” Smith v Organization of Foster Families, 431 US 816, 843-844; 97 S Ct 2094; 53 L Ed 2d 14 (1977). But there are limits to such claims. In the context of foster care, the Court has said:
[T]here are also important distinctions between the foster family and the natural family. First, unlike. the earlier cases recognizing a right to family privacy, the State here seeks to interfere, not with a relationship having its origins entirely apart from the power of the State, but rather with [655]*655a foster family which has its source in state law and contractual arrangements. . . . [T]he liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in "this Nation’s history and tradition.” Here, however, whatever emotional ties may develop between foster parent and foster child have their origins in an arrangement in which the State has been a partner from the outset.
A second consideration related to this is that ordinarily procedural protection may be afforded to a liberty interest of one person without derogating from the substantive liberty of another. ... It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they have freely entered, even in the absence of biological connection or state-law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another’s constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right — an interest the foster parent has recognized by contract from the outset. [431 US 845-846.]
Likewise, the DeBoers acquired temporary custody of this child, with whom they had no prior relationship, through the power of the state and must be taken to have known that their right to continue custody was contingent on the completion of the Iowa adoption. Within nine days of assuming physical custody and less than one month after the child’s birth, the DeBoers learned of Cara Schmidt’s claim that the waiver of rights procured by the attorney acting on behalf of the DeBoers was unlawful because she had not been afforded the seventy-two hour waiting period required by [656]*656Iowa law.1 Within two months of the child’s birth, the DeBoers learned of Daniel Schmidt’s claim of paternity when on March 27, 1991, he filed a petition to intervene in the DeBoers’ adoption proceeding.
The State of Iowa has not arbitrarily interfered "in a family-like association freely entered.” Rather, the Iowa courts have proceeded with the adoption action initiated by the DeBoers, and at the conclusion of that litigation ruled that there would be no adoption, preventing the creation of the family unit that was the objective of the adoption petition.
In Docket No. 96366,2 we affirm the judgment of the Court of Appeals for two independent reasons. First, the Uniform Child Custody Jurisdiction Act3 (uccja) and the federal Parental Kidnapping Prevention Act4 (pkpa) deprive the Michigan courts of jurisdiction over this custody dispute and require the enforcement of the orders of the Iowa courts directing that the Schmidts have custody of the child. Second, the DeBoers lack standing to bring this custody action under our decision in Bowie v Arder, 441 Mich 23; 490 NW2d 568 (1992).
[657]*657In Docket Nos. 96441, 96531, and 965325 we vacate the orders of the Washtenaw Circuit Court and direct that the action be dismissed for failure to state a claim upon which relief may be granted. While a child has a constitutionally protected interest in family life, that interest is not independent of its parents’ in the absence of a showing that the parents are unfit. In this case, in the Iowa litigation the DeBoers were unable to prove that the child’s father would not be a fit parent, and no claim has been made that her mother is unfit.
i
The facts are set out at length in the opinion of the Court of Appeals. Briefly, on February 8, 1991, Cara Clausen gave birth to a baby girl in Iowa. Proceedings in Iowa have established that defendant Daniel Schmidt is the child’s father. On February 10, 1991, Clausen signed a release of custody form, relinquishing her parental rights to the child. Clausen, who was unmarried at the time of the birth,6 had named Scott Seefeldt as the father. On February 14, 1991, he executed a release of custody form.
On February 25, 1991, petitioners Roberta and Jan DeBoer, who are Michigan residents, filed a petition for adoption of the child in juvenile court [658]*658in Iowa. A hearing was held the same day, at which the parental rights of Cara Clausen and Seefeldt were terminated, and petitioners were granted custody of the child during the pendency of the proceeding. The DeBoers returned to Michigan with the child, and she has lived with them in Michigan continuously since then.
However, the prospective adoption never took place. On March 6, 1991, nine days after the filing of the adoption petition, Cara Clausen filed a motion in the Iowa Juvenile Court to revoke her release of custody. In an affidavit accompanying the request, Clausen stated that she had lied when she named Seefeldt as the father of the child, and that the child’s father actually was Daniel Schmidt. Schmidt filed an affidavit of paternity on March 12, 1991, and on March 27, 1991, he filed a petition in the Iowa district court, seeking to intervene in the adoption proceeding initiated by the DeBoers.
On November 4, 1991, the district court in Iowa conducted a bench trial on the issues of paternity, termination of parental rights, and adoption. On December 27, 1991, the district court found that Schmidt established by a preponderance of the evidence that he was the biological father of the child; that the DeBoers failed to establish by clear and convincing evidence that Schmidt had abandoned the child or that his parental rights should be terminated; and that a best interests of the child analysis did not become appropriate unless abandonment was established. On the basis of these findings, the court concluded that the termination proceeding was void with respect to Schmidt, and that the DeBoers’ petition to adopt [659]*659the child must be denied. Those decisions have been affirmed by the Iowa appellate courts.7
On remand from the Iowa Supreme Court, the district court ordered the DeBoers to appear on December 3, 1992, with the child.8
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Per Curiam.
These two related cases arise out of a child custody dispute involving the competing claims of the child’s natural parents (Cara and Daniel Schmidt) and the third-party custodians with whom the child now lives (Roberta and Jan DeBoer).
While we will deal at length with the various arguments marshaled in support of their claims, we sum up our analysis of the competing arguments by reference to the words of the United States Supreme Court: "No one would seriously dispute that a deeply loving and interdependent relationship with an adult and a child in his or her care may exist even in the absence of blood relationship.” Smith v Organization of Foster Families, 431 US 816, 843-844; 97 S Ct 2094; 53 L Ed 2d 14 (1977). But there are limits to such claims. In the context of foster care, the Court has said:
[T]here are also important distinctions between the foster family and the natural family. First, unlike. the earlier cases recognizing a right to family privacy, the State here seeks to interfere, not with a relationship having its origins entirely apart from the power of the State, but rather with [655]*655a foster family which has its source in state law and contractual arrangements. . . . [T]he liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in "this Nation’s history and tradition.” Here, however, whatever emotional ties may develop between foster parent and foster child have their origins in an arrangement in which the State has been a partner from the outset.
A second consideration related to this is that ordinarily procedural protection may be afforded to a liberty interest of one person without derogating from the substantive liberty of another. ... It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they have freely entered, even in the absence of biological connection or state-law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another’s constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right — an interest the foster parent has recognized by contract from the outset. [431 US 845-846.]
Likewise, the DeBoers acquired temporary custody of this child, with whom they had no prior relationship, through the power of the state and must be taken to have known that their right to continue custody was contingent on the completion of the Iowa adoption. Within nine days of assuming physical custody and less than one month after the child’s birth, the DeBoers learned of Cara Schmidt’s claim that the waiver of rights procured by the attorney acting on behalf of the DeBoers was unlawful because she had not been afforded the seventy-two hour waiting period required by [656]*656Iowa law.1 Within two months of the child’s birth, the DeBoers learned of Daniel Schmidt’s claim of paternity when on March 27, 1991, he filed a petition to intervene in the DeBoers’ adoption proceeding.
The State of Iowa has not arbitrarily interfered "in a family-like association freely entered.” Rather, the Iowa courts have proceeded with the adoption action initiated by the DeBoers, and at the conclusion of that litigation ruled that there would be no adoption, preventing the creation of the family unit that was the objective of the adoption petition.
In Docket No. 96366,2 we affirm the judgment of the Court of Appeals for two independent reasons. First, the Uniform Child Custody Jurisdiction Act3 (uccja) and the federal Parental Kidnapping Prevention Act4 (pkpa) deprive the Michigan courts of jurisdiction over this custody dispute and require the enforcement of the orders of the Iowa courts directing that the Schmidts have custody of the child. Second, the DeBoers lack standing to bring this custody action under our decision in Bowie v Arder, 441 Mich 23; 490 NW2d 568 (1992).
[657]*657In Docket Nos. 96441, 96531, and 965325 we vacate the orders of the Washtenaw Circuit Court and direct that the action be dismissed for failure to state a claim upon which relief may be granted. While a child has a constitutionally protected interest in family life, that interest is not independent of its parents’ in the absence of a showing that the parents are unfit. In this case, in the Iowa litigation the DeBoers were unable to prove that the child’s father would not be a fit parent, and no claim has been made that her mother is unfit.
i
The facts are set out at length in the opinion of the Court of Appeals. Briefly, on February 8, 1991, Cara Clausen gave birth to a baby girl in Iowa. Proceedings in Iowa have established that defendant Daniel Schmidt is the child’s father. On February 10, 1991, Clausen signed a release of custody form, relinquishing her parental rights to the child. Clausen, who was unmarried at the time of the birth,6 had named Scott Seefeldt as the father. On February 14, 1991, he executed a release of custody form.
On February 25, 1991, petitioners Roberta and Jan DeBoer, who are Michigan residents, filed a petition for adoption of the child in juvenile court [658]*658in Iowa. A hearing was held the same day, at which the parental rights of Cara Clausen and Seefeldt were terminated, and petitioners were granted custody of the child during the pendency of the proceeding. The DeBoers returned to Michigan with the child, and she has lived with them in Michigan continuously since then.
However, the prospective adoption never took place. On March 6, 1991, nine days after the filing of the adoption petition, Cara Clausen filed a motion in the Iowa Juvenile Court to revoke her release of custody. In an affidavit accompanying the request, Clausen stated that she had lied when she named Seefeldt as the father of the child, and that the child’s father actually was Daniel Schmidt. Schmidt filed an affidavit of paternity on March 12, 1991, and on March 27, 1991, he filed a petition in the Iowa district court, seeking to intervene in the adoption proceeding initiated by the DeBoers.
On November 4, 1991, the district court in Iowa conducted a bench trial on the issues of paternity, termination of parental rights, and adoption. On December 27, 1991, the district court found that Schmidt established by a preponderance of the evidence that he was the biological father of the child; that the DeBoers failed to establish by clear and convincing evidence that Schmidt had abandoned the child or that his parental rights should be terminated; and that a best interests of the child analysis did not become appropriate unless abandonment was established. On the basis of these findings, the court concluded that the termination proceeding was void with respect to Schmidt, and that the DeBoers’ petition to adopt [659]*659the child must be denied. Those decisions have been affirmed by the Iowa appellate courts.7
On remand from the Iowa Supreme Court, the district court ordered the DeBoers to appear on December 3, 1992, with the child.8 The DeBoers did not appear at the hearing; instead, their Iowa attorney informed the court that the DeBoers had received actual notice of the hearing but had decided not to appear. In an order entered on December 3, 1992, the district court terminated the DeBoers’ rights as temporary guardians and custodians of the child. The court found that
Mr. and Mrs. De[B]oer have no legal right or claim to the physical custody of this child. They are acting outside any legal claim to physical control and possession of this child.
On the same day their rights were terminated in Iowa, the DeBoers filed a petition in Washtenaw Circuit Court, asking the court to assume jurisdiction under the uccja. The petition requested that the court enjoin enforcement of the Iowa custody order and find that it was not enforceable, or, in the alternative, to modify it to give custody to the DeBoers. On December 3, 1992, the Washtenaw Circuit Court entered an ex parte temporary restraining order, which directed that the child remain in the custody of the DeBoers, and ordered Schmidt not to remove the child from Washtenaw County.
On December 11, 1992, Schmidt filed a motion for summary judgment to dissolve the preliminary injunction and to recognize and enforce the Iowa [660]*660judgment. The Washtenaw Circuit Court held a hearing on Schmidt’s motion on January 5, 1993. It found that it had jurisdiction to determine the best interests of the child. It denied Schmidt’s motion for summary judgment, and directed that the child remain with the DeBoers until further order of the court.9
On March 29, 1993, the Court of Appeals reversed10 the Washtenaw Circuit Court’s denial of Schmidt’s motion for summary judgment, concluding that court lacked jurisdiction under the uccja, and that under our decision in Bowie v Arder, supra, the DeBoers lacked standing to bring the action. 199 Mich App 10; 501 NW2d 193 (1993).
Following the Court of Appeals decision, on April 14, 1993, a complaint for "child custody, declaratory relief, and injunctive relief” was filed in Washtenaw Circuit Court. The plaintiff was described as "Jessica DeBoer (a/k/a Baby Girl Clausen), by her next friend, Peter Darrow.” Mr. Darrow, a Washtenaw County attorney, had been appointed as one of the co-guardians ad litem for the child in the earlier custody case. On that date, the Washtenaw Circuit Court entered an order appointing Darrow as next friend in the new action, and an order to show cause directing the [661]*661DeBoers and Schmidts to appear on April 22. The latter included language that pending that hearing, "the minor child’s residence status quo shall be maintained.” At the hearing on April 22, after hearing argument by counsel for the Schmidts and the DeBoers, the circuit court entered an "order continuing status quo.” It provided, in part:
1. The status quo as to the residence of the Plaintiff, Jessica DeBoer, with Defendants, Roberta and Jan DeBoer shall be maintained during the pendency of this action or until further order of this Court, or any appellate court.
2. Counsel for the parties, and all other interested persons, if they obtain permission from the Court, may file briefs on the legal and constitutional issues raised by this action within 21 days from the date of this Order.
On April 27, 1993, the Schmidts filed an application for leave to appeal to the Court of Appeals. They also filed an application for leave to appeal to this Court before decision by the Court of Appeals under MCR 7.302(C)(1). On May 6, 1993, we granted the DeBoers’ application in Docket No. 96366,11 and the Schmidts’ application for leave to appeal before decision by the Court of Appeals in Docket Nos. 96441, 96531, and 96532.12 442 Mich 903.
ii
Interstate enforcement of child custody orders [662]*662has long presented vexing problems. This arose principally from uncertainties about the applicability of the Full Faith and Credit Clause of the United States Constitution.13 Because custody decrees were generally regarded as subject to modification, states had traditionally felt free to modify another state’s prior order.14
The initial attempt to deal with these jurisdictional problems was the drafting of the Uniform Child Custody Jurisdiction Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 1968. 9 ULA 123. That uniform act has now been enacted, in some form, in all fifty states, the District of Columbia, and the U.S. Virgin Islands. The Michigan version of the act is found at MCL 600.651 et seq.; MSA 27A.651 et seq. The act provides standards for determining whether a state may take jurisdiction of a child custody dispute,15 and sets forth the circumstances [663]*663in which the courts of other states are prohibited from subsequently taking jurisdiction,16 are required to enforce custody decisions of the original state,17 and are permitted to modify such decisions.[664]*66418
Despite the widespread enactment of the uccja, variations in the versions adopted in some states, and differing interpretations, resulted in continuing uncertainty about the enforceability of custody decisions.19 In 1980, Congress responded by adopting the Parental Kidnapping Prevention Act,20 28 USC 1738A. The pkpa "imposes a duty on the States to enforce a child custody determination entered by a court of a sister State if the determination is consistent with the provisions of the Act.” Thompson v Thompson, 484 US 174, 175-176; 108 S Ct 513; 98 L Ed 2d 512 (1988). The pkpa includes provisions similar to the uccja, and em[665]*665phatically imposes the requirement that sister-state custody orders be given effect.21
hi
In its March 29, 1993, opinion, the Court of Appeals agreed with Daniel Schmidt that the [666]*666Washtenaw Circuit Court lacked jurisdiction to modify the Iowa custody orders and was instead required to enforce them. It explained:
Schmidt asserts that pursuant to the Full Faith and Credit Clauses in both the United States Constitution, US Const, art IV, § 1, and the uccja, MCL 600.663; MSA 27A.663, the Washtenaw Circuit Court was obligated to recognize and enforce the valid judgment from Iowa. Iowa exercised jurisdiction, entered a judgment, and retained jurisdiction. Iowa has continued to exercise jurisdiction throughout, even to holding the DeBoers in contempt of court.
We find that the Washtenaw Circuit Court lacked jurisdiction to intervene in this case. The uccja has been enacted by every state, including Michigan. See 1975 PA 297. Its primary purpose is to avoid jurisdictional competition between states by establishing uniform rules for deciding when states have jurisdiction to make child custody determinations. MCL 600.651; MSA 27A.651. Pursuant to § 656(1) of the uccja, MCL 600.656(1); MSA 27A.656(1), Michigan is precluded from exercising jurisdiction if a matter concerning custody is pending in another state at the time the petition to modify is filed in this state. See Moore v Moore, 186 Mich App 220, 226; 463 NW2d 230 (1990). An adoption proceeding is included in the definition of a custody proceeding under the uccja. MCL 600.652(c); MSA 27A.652(c). Foster v Stein, 183 Mich App 424, 430; 454 NW2d 244 (1990). The DeBoers filed their petition in Washtenaw Circuit Court on December 3, 1992. On that date the Iowa district court entered an order terminating the DeBoers’ rights as temporary guardians and custodians of [the child], and scheduled a hearing for the DeBoers to show cause why they should not be held in contempt. Although the issues concerning the dismissal of the DeBoers’ adoption petition and the right to physical custody of [the child] had been determined by the Iowa Supreme Court before December 3, 1992, further proceedings were [667]*667scheduled in the case. Under § 656(1) of the uccja, the Washtenaw Circuit Court was precluded from intervening in this case, and was obligated to recognize and enforce the Iowa order of December 3, 1992. US Const, art IV, § 1; MCL 600.663; MSA 27A.663.
We find that the DeBoers’ contention that a Michigan court could modify the Iowa order because Iowa did not act substantially in conformity with the uccja by doing a "best interests of the child” analysis is without merit. The Iowa court dismissed the adoption petition and granted custody of [the child] to Schmidt because he was the biological father of the child and because his parental rights had not been terminated. The Iowa court found that Iowa statutes and case law did not require the type of best interests analysis sought by the DeBoers in Michigan unless statutory grounds for termination had been established. [199 Mich App 17-19.]
IV
A
The DeBoers argue that the Iowa custody orders were subject to modification by Michigan courts because the Iowa proceedings were no longer "pending” under the uccja at the time the Washtenaw Circuit Court action was filed on December 3, 1992. They point to Ford Motor Co v Jackson, 47 Mich App 700; 209 NW2d 794 (1973), for the proposition that an action is no longer pending once a final determination has been made on appeal. They maintain that when the Iowa Supreme Court affirmed the judgment awarding custody to the natural father on September 23, 1992, and thereafter denied the DeBoers’ request for rehearing, that made the decree final, and therefore modifiable. The only remaining matters [668]*668in Iowa were hearings to enforce the final order. They maintain that such enforcement proceedings do not involve custody issues, and thus the proceeding with regard to custody was no longer pending.
We reject the DeBoers’ construction of the uccja.22 Enforcement of the Iowa decision is required by the pkpa,23 and therefore a detailed [669]*669analysis of the uccja is not required.
The congressionally declared purpose of the pkpa is to deal with inconsistent and conflicting laws and practices by which courts determine their jurisdiction to decide disputes between persons claiming rights of custody. Inconsistency in the determination by courts of their jurisdiction to decide custody disputes contributes to
the disregard of court orders, excessive relitigation of cases, [and] obtaining of conflicting orders by the courts of various jurisdictions .... [PL 96-611, § 7(a)(3), 94 Stat 3569.]
Congress also recognized that
among the results of those conditions and activities are the failure of the courts of such jurisdictions to give full faith and credit to the judicial proceedings of the other jurisdictions . . . and harm to the welfare of children and their parents and other custodians. [PL 96-611, § 7(a)(4), 94 Stat 3569.]
For these reasons, among others, Congress declared that the best interests of the child required the establishment of a uniform system for the assumption of jurisdiction to
(3) facilitate the enforcement of custody and visitation decrees of sister States;
(4) discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;_
[670]*670(5) avoid jurisdictional competition and conflict between State courts in matters of child custody and visitation which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being. [Id., § 7(c)(3)-(5).]
The suggestion that in this context the best interests purpose of the pkpa mandates a best interests analysis in Iowa, failing which the Iowa decision is not entitled to full faith and credit, would permit the forum state’s view of the merits of the case to govern the assumption of jurisdiction to modify the foreign decree. It also suggests that Congress intended to impose the substantive best interests rule in all custody determinations on the laws of the fifty states.24 This interpretation is in conflict with the directive of Congress that "[t]he appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided . . . any child custody determination made consistently with the provisions of this section by a court of another State.” 28 USC 1738A(a).__
[671]*671It has been aptly noted that the vulnerability of a custody decree to an out-of-state modification presented the greatest need of all for the reform effort of the pkpa. "In language that is subject to little or no misinterpretation the jurisdiction of the initial court continues to the exclusion of all others as long as that court has jurisdiction under the law of that state and the state remains the residence of the child or any contestant.” Baron, Federal preemption in the resolution of child custody jurisdiction disputes, 45 Ark L R 885, 901 (1993).
Certainty and stability are given priority under the pkpa, which gives the home state exclusive continuing jurisdiction. Thus, the pkpa expressly provides that if a custody determination is made consistently with its provisions, "[t]he appropriate authorities of every State shall enforce [it] according to its terms, and shall not modify” that custody decision. 28 USC 1738A(a) (emphasis added). "A child custody determination ... is consistent with the provisions [of the pkpa] only if ” the court making the determination had jurisdiction under its own laws, and the state was the "home state” of the child when the proceedings were commenced. 28 USC 1738A(c)(l). At the time of commencement of both the termination and adoption proceedings, Iowa unquestionably had jurisdiction under its own laws and Iowa was unquestionably the home state of the child. Thus, the child custody determination made by the Iowa court was made consistently with the provisions of the pkpa.
Where the custody determination is made consistently with the provisions of the pkpa, the jurisdiction of the court that made the decision is exclusive and continuing as long as that state "remains the residence of the child or of any contestant,” and it still has jurisdiction under its [672]*672own laws.25 28 USC 1738A(d). Unquestionably, Daniel Schmidt continues to reside in Iowa. Furthermore, Iowa law provides for continuing jurisdiction in custody matters,26 and the Iowa courts regarded themselves as continuing to have jurisdiction of the custody proceeding because they continued to issue orders in the case: the order of December 3, 1992, terminating the DeBoers’ right to custody and appointing Daniel Schmidt as custodian, and the order of January 27, 1993, holding the DeBoers in contempt. Because the Iowa custody determination was made consistently with the terms of the pkpa, and because Iowa’s jurisdic[673]*673tion continues, the Iowa court’s order must be enforced.
The courts of this state may only modify Iowa’s order if Iowa has declined to exercise its jurisdiction to modify it. 28 USC 1738A(f). Iowa has not declined to exercise its jurisdiction to modify its custody order; it has simply declined to order the relief sought by the DeBoers. Modification is not permitted on these facts:27 Iowa continues to have jurisdiction, it has not declined to exercise that jurisdiction, its jurisdiction is, therefore, exclusive, and Iowa’s exclusive continuing jurisdiction precludes the courts of this state from exercising jurisdiction to modify the Iowa order.
The uccja and the pkpa are legislative responses to the concerns expressed by Justice Jackson regarding the failure to recognize a custody judgment of a sister state. "A state of the law such as this, where possession is not merely nine points of the law but all of them and self-help the ultimate authority, has little to commend it in legal logic or as a principle of order in a federal system.”28 However, the uniformity of decisions contemplated by Congress cannot be realized if "judicial home-state favoritism and the substitution of 'the best interest of the child’ inquiry for jurisdictional inquiry . . . promote continuing custody litigation . . . .” Blakesley, Child custody — jurisdiction and procedure, 35 Emory LJ 291, 359 (1986).
The pkpa does indeed preempt state law in the resolution of jurisdiction^ disputes. Initial custody jurisdiction is limited to just one forum — the home state. Modification jurisdiction is exclusively re[674]*674served to the court that rendered the initial decree. Notice and opportunity to be heard must be given prior to a custody determination. Sister states are required to enforce those decrees and give them full faith and credit. Sister states are prohibited from interfering with those courts which are properly asserting jurisdiction.
* * *
Custody litigation is full of injustice — let there be no doubt about that. No system of laws is perfect. Consistency in the application of the laws, however, goes a long way toward curing much of the injustice. While the laws of the fifty states may vary as to the substantive rules in custody determinations, at least there is a uniform standard imposed equally on all the states by the pkpa for determining which court makes that determination. The pkpa and its preemptive effect can no longer be avoided. [Baron, supra at 912.]
B
The DeBoers argue that the Iowa judgment should not be enforced because the Iowa courts did not conduct a hearing into the best interests of the child in making the custody decision. They maintain that this undercuts the Iowa decision in two respects. First, they say this means that the Iowa decision was not in conformity with the uccja,29 and therefore not entitled to enforcement under [675]*675that statute.30 Second, they believe that the Iowa proceeding was repugnant to Michigan public policy.
We reject the contention that the decision of the Iowa courts not to conduct a best interests of the child hearing in the circumstances of this case justifies the refusal to enforce the Iowa judgments.31
The uccja and the pkpa are procedural statutes. To be sure, they express the purpose of assuring that the state that is in the best position to make [676]*676a proper determination regarding custody of the child be the one in which the action is brought, and that other states will follow the decision made there. That purpose has been achieved in this case. There can be no doubt that at the time the Iowa proceedings commenced in February 1991, that state was the appropriate one to take jurisdiction; it was in the best position to resolve the issues presented. As was conceded by counsel for the DeBoers during oral argument, the statutes do not provide that a best interests of the child standard is the substantive test by which all custody decisions are to be made. Each state, through, legislation and the interpretative decisions of its courts, is free to fashion its own substantive law of family relationships within constitutional limitations.
Further, we do not find the Iowa proceedings to be so contrary to Michigan public policy as to require us to refuse to enforce the Iowa judgments. Before turning to Michigan public policy, however, a preliminary matter must be examined.
After passage of the pkpa, we are not free to refuse to enforce the Iowa judgment as being contrary to public policy. That statute says:
The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State. [28 USC 1738A(a).]
Subsection (f) does not provide a basis for declining to enforce the Iowa order. For the first time at oral argument, the DeBoers asserted that the order was not made consistently with the pkpa. As they contended regarding the uccja, they think an order is not made consistently with the statute if a best interests of the child test is not Used. How[677]*677ever, they point to no provision of the statute with which the Iowa courts did not comply, and they cite no authority for their interpretation of the PKPA.
Turning to the matter of Michigan public policy, while in many custody disputes Michigan does apply a best interests of the child test, there are circumstances in which we do not. For example, § 39 of the Adoption Code has a pair of provisions regarding the termination of parental rights of putative fathers who seek custody of a child:
(1) If the putative father does not come within the provisions of subsection (2), and if the putative father appears at the hearing and requests custody of the child, the court shall inquire into his fitness and his ability to properly care for the child and shall determine whether the best interests of the child will be served by granting custody to him. If the court finds that it would not be in the best interest of the child to grant custody to the putative father, the court shall terminate his rights to the child.
(2) If the putative father has established a custodial relationship with the child or has provided support or care for the mother during pregnancy or for either mother or child after the child’s birth during the 90 days before notice of the hearing was served upon him, the rights of the putative father shall not be terminated except by proceedings in accordance with section 51(6) of this ehapter[32] or section 2 of chapter XIIA.[33] [MCL 710.39; MSA 27.3178(555.39).]
There will be many cases in which the putative [678]*678father meets the conditions that bring him within subsection 2, but in which someone else could make a persuasive showing that the best interests of the child require denying the father custody. Nevertheless, under the statute, the best interests standard of subsection 1 would not apply.34
Similarly, in the case of limited guardianships, if the hearing establishes that the parent or parents have substantially complied with a limited guardianship placement plan, the court is required to terminate the guardianship without using the best interests test that is applied where there has not been such compliance. MCL 700.424c(3); MSA 27.5424(3)(3). This is so even if the guardian could prevail on a best interests standard.
Finally, under Michigan law where a party has no legally cognizable claim to custody of a child, there is no right to a best interests hearing. E.g., Ruppel v Lesner, 421 Mich 559; 364 NW2d 665 (1984); Bowie v Arder, supra.
We express no opinion about whether we would require a Michigan court to hold a best interests of the child hearing if we were faced with the circumstances presented to the Iowa courts. However, we cannot hold that the Iowa judgment is unenforceable under the uccja and pkpa because such a hearing was not held.
v
The Court of Appeals also concluded that the DeBoers lacked standing to claim custody of the child. The Court said:
We hold that the DeBoers lacked standing to bring this action in Washtenaw Circuit Court. The [679]*679Iowa district court order of December 3, 1992, implemented the decision of the Iowa Supreme Court and stripped the DeBoers of any legal claim to custody of [the child]. The grant of temporary custody was rescinded. At that time, the DeBoers became third parties with respect to [the child], and no longer had a basis on which to claim a substantive right to custody. Bowie, supra at 43-45, 49, states that neither the Child Custody Act[35] nor "any other authority” gives standing to create a custody dispute to a third party who does not possess a substantive right to custody or is not a guardian. A right to legal custody cannot be based on the fact that a child resides or has resided with the third party. We take the reference in Bowie, supra at 45, to "any other authority” to include the uccja.
The DeBoers’ argument that Bowie, supra, does not apply to this case is without merit. As noted, the pronouncement in Bowie, supra, regarding the standing of third parties to create custody disputes is expressly not limited to actions brought under the Child Custody Act. Moreover, contrary to the DeBoers’ assertions, they have created a custody dispute by filing a petition in Washtenaw Circuit Court. The Iowa Supreme Court decision, implemented by the Iowa district court’s order of December 3, 1992, dismissed the DeBoers’ petition to adopt [the child] and rescinded their status as temporary guardians and custodians. The DeBoers had no further legal rights to [the child]. The DeBoers have attempted to use the uccja and the Washtenaw Circuit Court to create anew a right that the Iowa courts had extinguished. The DeBoers initiated a custody dispute in this state. Pursuant to Bowie, supra, they had no standing to do so. To disavow Bowie in this case would give an advantage to third parties in interstate custody disputes that is not enjoyed by third parties in intrastate disputes.
The DeBoers’ reliance on In re Danke, 169 Mich App 453; 426 NW2d 740 (1988), and In re Weldon, [680]*680397 Mich 225; 244 NW2d 827 (1976) (cases in which third parties with no legal right to custody weré granted standing to bring a custody action), is misplaced. Both cases were decided before Bowie, supra. The Bowie Court specifically stated that Weldon, supra, was overruled, and that a third party could not gain standing simply by filing a complaint and asserting that a change in custody would be in the best interests of the child. Bowie, supra at 48-49. [199 Mich App 19-21.]
VI
The DeBoers advance a variety of arguments in support of their claim that they have standing to litigate regarding the custody of the child.36 First, they argue that the uccja grants them standing, pointing particularly to two of the jurisdictional provisions in § 653(1).37
[681]*681The DeBoers also argue that Bowie v Arder does not deny them standing. To begin with, they think that Bowie let stand statements in the lower court decision to the effect that "once judicial intervention has already taken place, the court may award custody to third parties.” 190 Mich App 571, 573; 476 NW2d 649 (1991). Further, they see the only prohibition as being on the ability of a third party to create a custody dispute. In their view, judicial intervention in this dispute began over two years ago, and they did not create the dispute. The initial decree in Iowa resulted from Schmidt’s creation of a custody dispute when he filed a petition for intervention on March 27, 1991. Their filing of the petition in Michigan was a response to and an effort to modify the Iowa custody decree dissolving their right to custody of the child.
Further, the DeBoers believe that Bowie is inapplicable because it is a case dealing with the Child Custody Act. This is a uccja action in which the Child Custody Act’s provisions regarding best interests of the child are only incidentally involved. Even Bowie recognized that kind of incidental use of the Child Custody Act.
In addition Bowie said that a circuit court has the power to grant custody to "third parties according to the best interests of the child in an appropriate case (typically involving divorce)” and that "such an award of custody is based not on the third party’s legal right to custody of the child, but on the court’s determination of the child’s best interests.” 441 Mich 49, n 22.
Finally, the DeBoers assert that despite Bowie they had a substantive right to custody because they had custody pursuant to the February 25, 1991, order of the Iowa district court.
[682]*682In addition, the DeBoers maintain that there is a protected liberty interest in their relationship with the child, which gives them standing. They trace the recent history of constitutional protection of parental rights beginning with Stanley v Illinois, 405 US 645; 92 S Ct 1208; 31 L Ed 2d 551 (1972), through Quilloin v Walcott, 434 US 246; 98 S Ct 549; 54 L Ed 2d 511 (1978), Smith v Organization of Foster Families, 431 US 816; 97 S Ct 2094; 53 L Ed 2d 14 (1977), and Lehr v Robertson, 463 US 248; 103 S Ct 2985; 77 L Ed 2d 614 (1983), to Michael H v Gerald D, 491 US 110; 109 S Ct 2333; 105 L Ed 2d 91 (1989). From these cases, they extract the principles that it is the relationship between the parent and child that triggers significant constitutional protection and that the mere existence of a biological link is not determinative.
We reject these arguments. As the Court of Appeals noted, Bowie was not limited to Child Custody Act cases. The uccja is a procedural statute governing the jurisdiction of courts to entertain custody disputes. It is not enough that a person assert to be a "contestant” or "claim” a right to custody with respect to a child. If that were so, then any person could obtain standing by simply asserting a claim to custody, whether there was any legal basis for doing so or not. The Court of Appeals has correctly read our decision in Bowie as requiring the existence of some substantive right to custody of the child. We adhere to the holding of Bowie that a third party does not obtain such a substantive right by virtue of the child’s having resided with the third party. 441 Mich 43.38
We also agree with the Court of Appeals rejection of the DeBoers’ arguments regarding the "cre[683]*683ation” of a dispute and that they only seek to modify the Iowa order. It is true that Bowie recognized the incidental application of the Child Custody Act standards in other kinds of actions — typically divorce cases. However, the problem with the DeBoers’ reasoning is that there is no action that they are entitled to bring to which the Child Custody Act can be applied incidentally.
It may be that the Iowa district court’s February 25, 1991, order appointing the DeBoers as custodians during the pendency of the Iowa adoption proceeding was sufficiently analogous to a Michigan guardianship (which would create standing)39 to have given them standing to prosecute a custody action during the effectiveness of that order. However, as the Court of Appeals said, when the temporary custody order was rescinded, they became third parties to the child and no longer had a basis on which to claim a substantive right of custody.40
The United States Supreme Court cases on which the DeBoers rely do not establish that they have a federal constitutional right to seek custody of the child. None involved disputes between a natural parent or parents on one side and non-parents on the other. While some of those cases place limits on the rights of natural parents, particularly unwed fathers, they involve litigation pitting one natural parent against the other, in which, almost of necessity, one natural parent [684]*684must be denied rights that otherwise would, have been protected. Sometimes a nonparent in a sense "prevails” in such actions, but that has been in the context of adoption by a stepfather who is married to the child’s natural mother41 or legitimization of the status of the natural mother’s husband, who is not the biological father.42
Several of the cases talk about an unwed father’s rights as being dependent on the development of a relationship with the child. We read those decisions as providing the justification for denying the unwed father’s rights, rather than as establishing that nonparent custodians obtain such rights merely by having custody. Further, as the Iowa district court noted after reviewing these United States Supreme Court cases:
It is therefore now clearly established that an unwed father who has not had a custodial relationship with a child nevertheless has a constitutionally protected interest in establishing that relationship.
And, as the Iowa Supreme Court concluded:
We agree with the district court that abandonment was not established by clear and convincing evidence. In fact, virtually all of the evidence regarding Daniel’s intent regarding this baby suggests just the opposite: Daniel did everything he could reasonably dp to assert his parental rights, beginning even before he actually knew that he was the father.[43]
[685]*685VII
In Docket Nos. 96441, 96531, and 96532, the next friend for the child argues that we should recognize the right of a minor child to bring a Child Custody Act action and obtain a best interests of the child hearing regarding her custody. Because of the interrelationship of this action to the DeBoers’ application for leave to appeal in Docket No. 96366, we granted leave to appeal before decision by the Court of Appeals and directed the parties to brief the question whether the action should be dismissed for failure to state a claim upon which relief may be granted. Basically, the next friend advances three theories on which a child is entitled to bring such an action.
First, the next friend maintains that the Child Custody Act gives children the right to bring such actions. MCL 722.24; MSA 25.312(4), says that in actions under the act, "the court shall declare the inherent rights of the child.” The next friend asserts that there is nothing in the act that would deprive the child of the right to bring án action.
Second, the next friend maintains that the child has a due process liberty interest in her relationship with the DeBoers. Cases in other contexts are cited for the proposition that children are "persons” under the constitution and that constitutionally protected liberty interests run both to adults and minors. E.g., In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967); Planned Parenthood v Danforth, 428 US 52; 96 S Ct 2831; 49 L Ed 2d 788 (1976); Tinker v Des Moines Independent Community School Dist, 393 US 503; 89 S Ct 733; 21 L Ed 2d 731 (1969). The next friend reiterates the argu[686]*686ments made by the DeBoers that cases such as Lehr v Robertson and Smith v Organization of Foster Families establish that the liberty interest in family life arises out of relationships based on day-to-day contact and not on biological relationships.
Third, the next friend argues that the child is denied equal protection on two grounds. First, children are treated differently on the basis of whether they are in the custody of "psychological” parents rather than a biological parent. Second, the Child Custody Act grants some children residing with third-party custodians the right to a best interests hearing (those living with court-appointed guardians), but not others.
We do not believe that the Child Custody Act can be read as authorizing such an action.44 The act’s consistent distinction between the "parties” and the "child” makes clear that the act is intended to resolve disputes among adults seeking custody of the child.
It is true that children, as well as their parents, have a due process liberty interest in their family life. However, in our view those interests are not independent of the child’s parents. The Legislature has provided a right of parental custody and control of children:
Unless otherwise ordered by a court order, the [687]*687parents[45] of an unemancipated minor are equally entitled to the custody, control, services and earnings of the minor, but if 1 parent provides, to the exclusion of the other parent, for the maintenance and support of the minor, that parent has the paramount right to control the services and earnings of the minor. [MCL 722.2; MSA 25.244(2).]
The mutual rights of the parent and child come into conflict, only when there is a showing of parental unfitness.46 As we have held in a series of cases, the natural parent’s right to custody is not to be disturbed absent such a showing, sometimes despite the preferences of the child.
In Burkhardt v Burkhardt, 286 Mich 526; 282 NW 231 (1938), the child was one year old at the time of his parents’ divorce. The mother was awarded custody, but voluntarily placed the child with third parties. Several years later, the mother took custody of the child. The father obtained an order giving him legal custody, but directing that the child actually be in the care of the third [688]*688parties. We reversed, awarding custody to the mother:
It is a well-established principle of law, too well grounded to need citation of authority, that the parents, whether rich or poor, have the natural right to the custody of their children, subject to judicial control only when the safety or interests of the child demand it. . . . The choice of a child of the tender age of four years cannot be considered by the court in its determination of what disposition shall be made of the case. [286 Mich 534-535.]
Liebert v Derse, 309 Mich 495; 15 NW2d 720 (1944), involved the custody of a six year old. He had been legally adopted by a couple. His adoptive mother died when the child was two years old, and the adoptive father temporarily placed him with the child’s aunt. Several years later, when the child was six, he objected to returning to his father, who petitioned for habeas corpus, seeking return of the child. The trial court declined to disturb the "wholesome and happy surroundings” of custody with the aunt. We reversed:
We recognize the long-established rule that the best interest of the child is of paramount importance, . . . and that it is our judicial duty to safeguard his welfare and care .... However, we never have interpreted such rule so as to deprive a parent of the custody of his or her child, unless it was shown that the parent was an unsuitable person to have such custody.
When placed on the witness stand, the boy said, in substance, that he thought his father would be good to him but that he preferred to stay with defendants. Such preference was the natural desire of a small child to remain in the environment [689]*689to which he had become accustomed. While his wishes are entitled to consideration, it is clear that a six-year-old child is hardly competent to determine what environment and whose custody are best for his present and future welfare. Furthermore, his present wish to remain with defendants cannot overrule the established legal right of his father to his custody. [309 Mich 500-504.]
In Riemersma v Riemersma, 311 Mich 452; 18 NW2d 891 (1945), the child had lived with her grandparents since she was two years old. Two years later, the mother took her back, and the grandparents brought an action for custody. After quoting from Liebert v Derse, we held the mother entitled to custody:
There was no allegation or showing that the mother was not a suitable person to have the custody of her infant daughter. In the absence of such a showing, she was . . . clearly entitled to the child’s custody. [311 Mich 462.]
Finally, in Herbstman v Shiftan, 363 Mich 64; 108 NW2d 869 (1961), the natural father placed his one and one-half-year-old daughter with relatives of his deceased wife. Three and one-half years later he sought to have the child returned to him. We summarized the applicable principles:
It is a well-established principle of law that the parents, whether rich or poor, have the natural right to the custody of their children. The rights of parents are entitled to great consideration, and the court should not deprive them of custody of their children without extremely good cause. A child also has rights, which include the right to 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, [690]*690or 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, guardians, 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. [363 Mich 67-68.]
Despite the limited contact that the father had had with the child during the years, we reversed the trial court and awarded custody to him.
Nothing in the more recent United States Supreme Court decisions requires a different result.47 Indeed, several of its decisions emphasize the limitations on minors’ rights to independently assert rights regarding their custody and care. Michael H v Gerald D, supra; Parham v J R, 442 US 584; 99 S Ct 2493; 61 L Ed 2d 101 (1979).
In the Iowa proceedings, a challenge to Daniel Schmidt’s fitness was vigorously prosecuted by the DeBoers, and they failed to prove that he was unfit. That determination is no longer challenged.
We also disagree with the next friend’s assertion that the child’s interests were not considered in Iowa. A guardian ad litem was appointed, before Daniel Schmidt moved to intervene in the action. We have no reason to believe that the guardian ad litem’s advice to the court was anything but a good-faith effort to advise regarding the interests of the child. While that proceeding did not use the "best interests of the child” standard that the next friend and the DeBoers prefer, there is no basis for requiring use of that standard.48
[691]*691With regard to the equal protection arguments, we reject the view that children residing with their parents are similarly situated to those residing with nonparents; as just explained, the relationship between natural parents and their children is fundamentally different than that between a child and nonparent custodians. Nor does the Child Custody Act’s exception for guardians deny equal protection. Children living with guardians and those living with other third-party custodians are also not similarly situated. The safeguards in the guardianship statute provide protection against manipulative attempts to temporarily obtain possession and use that as the basis for a Child Custody Act action.
vm
In Docket No. 96366, we affirm the judgment of the Court of Appeals, and in Docket Nos. 96441, 96531, and 96532, we remand the case to the Washtenaw Circuit Court with directions that the action be dismissed for failure to state claims upon which relief may be granted. The clerk is directed to issue the judgment orders forthwith. Pursuant to MCR 7.317(C)(3), the filing of a motion for [692]*692rehearing will not stay enforcement of the judgments.
We direct the Washtenaw Circuit Court to enter an order enforcing the custody orders entered by the Iowa courts. In consultation with counsel for the Schmidts and the DeBoers, the circuit court shall promptly establish a plan for the transfer of custody, with the parties directed to cooperate in the transfer with the goal of easing the child’s transition into the Schmidt home. The circuit court shall monitor and enforce the transfer process, employing all necessary resources of the court, and shall notify the clerk of this Court 21 days following the release of this opinion of the arrangements for transfer of custody. The actual transfer shall take place within 10 days thereafter.
To a perhaps unprecedented degree among the matters that reach this Court, these cases have been litigated through fervent emotional appeals, with counsel and the adult parties pleading that their only interests are to do what is best for the child, who is herself blameless for this protracted litigation and the grief that it has caused.49 However, the clearly applicable legal principles require that the Iowa judgment be enforced and that the child be placed in the custody of her natural parents. It is now time for the adults to move beyond saying that their only concern is the welfare of the child and to put those words into action by assuring that the transfer of custody is accom[693]*693plished promptly with minimum disruption of the life of the child.
Related
Cite This Page — Counsel Stack
502 N.W.2d 649, 442 Mich. 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deboer-v-schmidt-mich-1993.