On March 3, 2009, the Michigan Supreme Court will hear oral argument in the case of Hunter v. Hunter, No. 136310. The Court granted leave to address several important issues regarding the burden of proof a trial court must use when making custody determinations as between a parent and a third party. The most imporant issue to be addressed is whether the standard of parental fitness announced in Mason v. Simmons, 267 Mich App 188, 206 (2005), violates a natural parent's fundamental rights to his or her child. The order granting leave to appeal can be found here. The parties' briefs can be found here.
This case involves the custody of Defendant/Appellant Tammy Hunter's four minor children. The case was initiated by Plaintiffs Robert and Lorie Hunter, the children's guardians and paternal uncle and aunt. Defendant left her children with Plaintiffs in October 2002 because of a cocaine addiction. Two years later, Defendant was incarcerated. Initially, Plaintiffs were appointed as the children's limited guardians, but became the children's permanent co-guardians in July 2003.
After being released from prison, Defendant obtained supervised visits of her children. In May 2006, Plaintiffs sued for custody of the children. The friend of the court referee concluded that the defendant was not a fit parent, found that an established custodial environment existed with Plaintiffs, and determined it was in the children's best interests to award custody to Plaintiffs. Defendant objected to the referee's ruling, and the trial court judge affirmed the referee's recommendation concluding that Defendant was an unfit parent and awarding custody to Plaintiffs.
In a 2-1 decision, the Court of Appeals affirmed the holding of the trial court. The Court of Appeals acknowledged that in a custody dispute between a fit parent and a third party, the court should presume that awarding custody to the parent is in the child's best interests. However, in this case the trial court determined that Defendant was not a fit parent. Where a parent is unfit, the Court of Appeals held that a third party is entitled to the established custodial environment presumption.
In dissent, Judge Gleicher argued that the standard for determining whether a parent is unfit should be the same criteria utilized in parenting rights termination cases. Using this criteria, Judge Gleicher reasoned that Defendant would not be deemed an unfit parent and therefore was entitled to a constitutionally mandated, strong presumption that the best interests of her children would be served by transferring their custody to her.
Five coalitions of public interest groups including the American Civil Liberties Union Fund of Michigan, the majority of the Family Law Section of the State Bar of Michigan, and the Michgian Coalition Against Domestic and Sexual Violence (there are allegations that Plaintiffs used corporal punishment) submitted amicus curiae briefs in support of Defendant/Appellant.