Deel v. Deel

317 N.W.2d 685, 113 Mich. App. 556
CourtMichigan Court of Appeals
DecidedFebruary 19, 1982
DocketDocket 53633
StatusPublished
Cited by23 cases

This text of 317 N.W.2d 685 (Deel v. Deel) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deel v. Deel, 317 N.W.2d 685, 113 Mich. App. 556 (Mich. Ct. App. 1982).

Opinions

Per Curiam.

This case presents a child custody dispute. Defendant has appealed by right from the trial court’s order granting custody to the child’s father, Edgar R. Deel.

The subject of the dispute is Edgar Deel, Jr., the minor child of the plaintiff and the defendant. Because the child shares his father’s name he was referred to at trial as "little Eddie” and we will refer to him in that manner as well. Little Eddie is now over seven years old. His parents were married at a young age and their marriage did not last long. In August of 1976, when little Eddie was two years old, a judgment of divorce was entered granting custody to his mother. Some sort of reconciliation apparently took place, and in February of 1977, plantiff and defendant were remarried. Whatever the reason for this reconciliation it was incredibly short-lived and the parties separated again sometime between two days and three weeks after the wedding. It was not until two years later, however, that the plaintiff, little Eddie’s father, filed for a second divorce.

When filing for the second divorce little Eddie’s father obtained an ex parte interim order granting him custody of little Eddie. Less than a month later a new order was entered granting temporary custody to Betty Dennis, little Eddie’s maternal grandmother. Little Eddie had spent much of his life in the physical custody of various grandparents and great-grandparents and at the time of the trial in August of 1980 he had been in the physical custody of Betty Dennis for somewhere between three and five years, the last 1-1/3 years of this [559]*559period under the order granting her temporary legal custody as well.

Much of the divorce trial was devoted to the issue of custody. Plaintiff continued to seek permanent custody of his son. The defendant was not, at the time of trial, seeking custody for herself. Among other problems, she had apparently experienced difficulties with drugs and had been convicted of a crime concerning prostitution. It was her wish that her mother, Betty Dennis, be awarded custody in the judgment. Thus the contest was between little Eddie’s father and maternal grandmother. The trial court resolved this dispute in favor of the father, and the judgment awarded him custody. The judgment also awarded Betty Dennis liberal visitation rights.

In any child custody dispute, including those between a natural parent and a third party, the overriding concern is for the best interests of the child. Siwik v Siwik, 89 Mich App 603; 280 NW2d 610 (1979), Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978), Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975), lv den 394 Mich 794 (1975). See In re Weldon, 397 Mich 225, 240, 265-275; 244 NW2d 827 (1976) (opinions of Williams, J., and Coleman, J.).1 The best interests of the child are determined by considering the factors set forth in MCL 722.23; MSA 25.312(3). In addition, the Legislature has provided guidance for determining the best interests of the child in specific circumstances. As concerns the instant case defendant points to the following statutory language:

"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 [560]*560unless there is presented clear and convincing evidence that it is in the best interest of the child.” MCL 722.27(c); MSA 25.312(7)(c). (Emphasis added.)2

Plaintiff, on the other hand, refers to the following:

"When the dispute is between the parent or parents and an agency or a third person, it is presumed 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.” MCL 722.25; MSA 25.312(5). (Emphasis added.)

This Court has stated in the past, when considering these two statutory provisions, that each "should be recognized equally, with the best interest of the child as the overriding concern, a concern sufficient to overcome any of the rebuttable presumptions in the statute”. Siwik v Siwik, supra, 608, Stevens v Stevens, supra, 269. In the instant case defendant complains that the trial court gave too much weight to the fact that plaintiff was little Eddie’s natural father, and not enough weight to the fact that her mother, Betty Dennis, had provided an established custodial environment. Defen[561]*561dant apparently takes the position that Siwik, Stevens, and Bahr v Bahr, supra, require that the presumption in favor of the natural parent be given the same weight as the presumption in favor of the established custodial environment. We do not read these cases as establishing such a rule. 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. While the established custodial environment is to be favored unless there is clear and convincing evidence that a change is in the best interests of the child, it is presumed that the best interests of the child are served by granting custody to the natural parent. This suggests that the burden in a case such as that now before us is on the third party to show that a grant of custody in his or her favor is in the best interests of the child. This was recognized in Stevens, a case where, as in the instant case, the natural parent was seeking a change in custody from a third party. Despite the fact that in Stevens custody was presently with the third party, this Court noted that the presumption in favor of the natural parent still existed unless rebutted by clear and convincing evidence that the best interests of the child would be served by granting custody to the third party. Stevens v Stevens, supra, 269. Bahr v Bahr, supra, likewise involved a dispute between a third-party custodian and a natural parent. The Court in Bahr noted the existence of both presumptions, but ultimately stated:

"Still recognized, of course, is the presumption that the best interests of the child would be served by granting custody to the natural parent, MCL 722.25, supra. Indeed this remains a presumption of the strong[562]*562est order and it must be seriously considered and heavily weighted in favor of the parent. Nevertheless if the 'clear and convincing evidence’ establishes that the best interest of the child is served by awarding custody to the third party, the presumption is rebutted.” Bahr v Bahr, supra, 359.

Both presumptions should be considered because both are concerned with the ultimate issue of the child’s best interests. The statutory language and the decisions of this Court suggest, however, that the burden is on the third party to rebut the presumption in favor of the natural parent. Stevens and Bahr were concerned with recognizing both presumptions because prior law had established that the parental presumption could only be overcome by a showing that the natural parent was unfit. See Bahr v Bahr, supra, 359. Recognition of both presumptions does not, however, remove the third party’s burden to show that custody in his or her favor is in the child’s best interests.

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Deel v. Deel
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Bluebook (online)
317 N.W.2d 685, 113 Mich. App. 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deel-v-deel-michctapp-1982.