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A Better Partnership
April 27, 2012

COA Opinion: Parents seeking to regain custody from a third party do not need to satisfy the change-of-circumstances test

In Frowner v. Smith, No. 305704, the Michigan Court of Appeals held that where a parent seeks custody of a child from a third party, the trial court must determine whether all the relevant factors, including the child's best interests, demonstrate that the child should remain with the third party. The parent does not need to make the threshold showing of a change in circumstance to gain custody.

In Frowner, Defendant Lamonte Smith sought custody of his son. Following the mother's death in 2007, Smith had agreed to a consent order granting custody to the child's maternal grandparents. Smith sought to gain full custody several times after the consent order's entry. The present appeal arose from Smith's third attempt to gain custody. Acting in pro per, Smith filed a motion for change of custody. The circuit-court referee recommended that Smith's motion be denied because Smith had 'not stated a change of circumstances to warrant reviewing custody.' The circuit-court judge agreed. The Court of Appeals held that this was not the correct standard. Instead, the circuit court was obligated to consider the merits of the custody issue because a parent (with a constitutional right to parent) was challenging the custody of a third party, giving primacy to the parental presumption of MCL 722.25, rather than MCL 722.27, which provides for custody modification only upon a showing of change in circumstances. In order for the maternal grandparents to maintain custody, they must show by clear and convincing evidence that all the relevant factors, including the concerns listed in MCL 722.23, taken together show that the child's best interests require the child to remain in their custody, rather than in Smith's custody. The fact that Smith had previously agreed to the consent order did not change that analysis.

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