Despite the plaintiff-father’s lack of a relationship with toddler MP, the Court of Appeals affirmed the trial court’s determination that MP was born out of wedlock and its award to plaintiff of joint legal custody and parenting time in Demski v. Petlick
, No. 322193.
Defendant Cassidie Petlick became pregnant with plaintiff’s child in May 2010. She married defendant Jeffrey Petlick after her water broke but before MP was born in January 2011. Plaintiff visited MP at the hospital the day she was born. After that, plaintiff rarely saw MP, but there is some evidence that defendants impeded his involvement and threatened him with a personal protection order. When MP was approximately eighteen months old, plaintiff filed his “Complaint to Determine Parentage, Custody, Child Support, and Parenting Time.” The trial court considered plaintiff’s paternity claim under the Revocation of Paternity Act (RPA), MCL 722.1431 et seq., and convened a two-day evidentiary hearing. The trial court ruled that MP was born out of wedlock and entered an order of filiation in plaintiff’s favor. Six months later, without holding an additional hearing, the trial court awarded Cassidie sole physical custody of MP, and awarded plaintiff joint legal custody and parenting time. Defendants appealed.
The Court of Appeals first affirmed the trial court’s conclusion that plaintiff presented clear and convincing evidence that determining MP was born out of wedlock was not against MP’s best interests. MCL 722.1443(4) states that the trial court may consider eight factors in determining the child’s best interests. The trial court found that there was a strong bond of love between Jeffrey and MP, and that there was not a significant risk of disruption of Jeffrey’s relationship with MP if plaintiff was granted parenting time. The trial court also properly relied on defendants’ expert’s testimony that MP could benefit from introducing plaintiff into her life. As such, the Court of Appeals held that the trial court did not clearly err in declining to conclude that an order determining that MP was born out of wedlock would not be in her best interests.
The Court of Appeals then rejected defendants’ argument that the trial court was required to hold a separate evidentiary hearing before addressing child custody and parenting time. The Court concluded that, although it focused on plaintiff’s paternity claim under the RPA, the lower court’s bench trial featuring seven witnesses providing hundreds of pages of testimony and dozens of exhibits satisfied the evidentiary hearing requirement. The evidence introduced during the bench trial was applicable to both the RPA and the determination of child custody and parenting time under the Child Custody Act.
The Court of Appeals then affirmed the trial court’s child custody and parenting time determinations. In assessing the best-interest factors, the trial court found that one factor favored Cassidie, two factors strongly favored plaintiff, two factors were irrelevant, and the other seven factors weighed equally. The Court of Appeals instead concluded that two factors favored Cassidie, while one factor strongly favored plaintiff, and the majority of the remaining factors weighed equally. Despite the Court of Appeals’ different assessment of the factors, it concluded that the trial court did not err in awarding sole physical custody to Cassidie and joint legal custody to both parents. The factors were relatively evenly split between the parents. Thus, the trial court’s award of joint legal custody was not “grossly violative of fact and logic” as required to show an abuse of discretion. The Court also affirmed the trial court’s award of parenting time to plaintiff.
Finally, the Court of Appeals concluded that defendants’ lack of opportunity to cross-examine their expert witness on the report she submitted after the close of proofs but before the trial court’s custody and parenting time awards did not require a due process reversal of those awards. The Court explained that it would otherwise be obliged to find that due process would be continually offended as parenting time was evaluated going forward, whenever an expert issues court-directed reports to the Friend of the Court after the close of proofs, unless defendants were afforded, each and every time, a further opportunity to cross-examine their own expert.
Judge Gleicher dissented
, concluding that plaintiff failed to produce the requisite clear and convincing evidence that declaring MP was born out of wedlock would serve the child’s best interests, and that the trial court’s ex parte consideration of expert testimony and failure to hold a separate evidentiary hearing to consider the child’s best interests contravened the Child Custody Act.