Demski v. Petlick

STATE OF MICHIGAN

COURT OF APPEALS

JOSEPH RICHARD DEMSKI, FOR PUBLICATION

March 5, 2015

Plaintiff-Appellee,

v No. 322193

Berrien Circuit Court

CASSIDIE ANN PETLICK, f/k/a CASSIDIE LC No. 12-003323-DP

ANN POINTER, and JEFFREY PETLICK,

Defendant-Appellants.

Before: BOONSTRA, P.J., and DONOFRIO and GLEICHER, JJ.

GLEICHER, J. (dissenting).

During the first two-and-a-half years of her life, MP lived solely with her married

parents, Cassidie and Jeffrey Petlick. Jeffrey’s awareness that he was not MP’s biological father

did nothing to dim his devotion to his daughter.

Joseph Demski, MP’s biological father, sought to establish a role for himself in MP’s life.

The trial court considered Demski’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 Demski’s favor,

thereby disestablishing Jeffrey’s paternity and extinguishing his parental rights, despite that

Jeffrey continues to live with his wife and MP. Six months later, without holding an additional

hearing, the trial court awarded Demski joint legal custody of MP and parenting time.

The majority detects no errors in the trial court’s rulings or procedure. I respectfully

dissent. I believe that Demski was obligated to produce clear and convincing evidence that

declaring MP born out of wedlock would serve the child’s best interests, and that this showing

was not made. Moreover, the trial court’s ex parte consideration of expert testimony and its

failure to hold a separate evidentiary hearing to consider the child’s best interests contravened

the Child Custody Act (CCA), MCL 722.21 et seq., mandating reversal of its joint legal custody

and parenting-time decisions.

I. THE PATERNITY PROCEEDINGS

The RPA permits a court to determine that a child born to married parents was “born out

of wedlock” when certain circumstances are shown. MCL 722.1441(3)(c). That Cassidie was

not married at the time of MP’s conception and that Demski filed his revocation of paternity

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action within three years of MP’s birth supplied the predicate grounds for Demski’s claim. Once

established, those facts empowered the trial court to gather evidence of MP’s best interests in

deciding whether to declare MP a child “born out of wedlock.”

A child’s best interests are embedded within the Act: “A court may refuse to enter an

order setting aside a paternity determination or determining that a child is born out of wedlock if

the court finds evidence that the order would not be in the best interests of the child.” MCL

722.1443(4). Notably, the Legislature placed the best-interest inquiry ahead of a determination

that a child was born out of wedlock. Only after taking into account a child’s best interests is a

court vested with authority to “[m]ake a determination of paternity and enter an order of filiation

as provided under . . . MCL 722.717.” MCL 722.1443(2)(d).

DNA testing revealed that Demski fathered MP. MCL 722.1445 specifies that the clear

and convincing standard of proof applies regarding the evidence that an alleged father “is the

child’s father[.]”1 DNA proof of paternity easily satisfies that standard. However, the RPA

endorses that genetics alone do not a father make. “The results of blood or tissue typing or DNA

identification profiling are not binding on a court in making a determination under this act.”

MCL 722.1443(5). Furthermore, the Legislature explicitly authorized a trial court to “refuse to

enter an order setting aside a paternity determination or determining that a child is born out of

wedlock if the court finds evidence that the order would not be in the best interests of the child.”

MCL 722.1443(4) (emphasis added).2 The Act makes no mention of the standard of proof

1

“If an action is brought by an alleged father who proves by clear and convincing evidence that

he is the child’s father, the court may make a determination of paternity and enter an order of

filiation as provided for under . . . MCL 722.717.” MCL 722.1445.

2

MCL 722.1443(4) further dictates that “[t]he court may consider the following factors” when

determining whether a child is born out of wedlock:

(a) Whether the presumed father is estopped from denying parentage because of

his conduct.

(b) The length of time the presumed father was on notice that he might not be the

child’s father.

(c) The facts surrounding the presumed father’s discovery that he might not be the

child’s father.

(d) The nature of the relationship between the child and the presumed or alleged

father.

(e) The age of the child.

(f) The harm that may result to the child.

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applicable to the court’s best-interest determination under the RPA. The majority assumes that

the preponderance standard applies. In my view, the appropriate standard is that of clear and

convincing evidence.

This issue comes to us by way of the Petlicks’ argument that the trial court failed to

assign to Demski “the burden of persuasion.” I agree with the majority that the record generally

refutes that proposition. The Petlicks further contend that based on “the presumption in favor of

maintaining the child’s established custodial environment,” Demski was required to present

“clear and convincing evidence” that MP’s best interests would be served by revoking Jeffrey’s

presumed paternity. The majority observes that “the trial court indicated that it had applied a

clear and convincing evidentiary standard when it reached its determination regarding the best

interests of the child under MCL 722.1443(4).” The record is not nearly so straightforward.

And in this case, Demski’s evidence concerning MP’s best interests fell well short of even an

evidentiary preponderance.

Indisputably, the trial court used a clear and convincing standard when ruling that

Demski had demonstrated “that he is the child’s [biological] father.” The Legislature plainly

prescribed that “clear and convincing” evidence must control a court’s paternity determination in

MCL 722.1445. The DNA evidence supporting Demski’s parentage went unchallenged. Hence,

the trial court’s distinct articulation that clear and convincing evidence dictated its paternity

finding is unsurprising. Whether the trial court employed a clear and convincing standard when

it evaluated the child’s best interests under the RPA represents an entirely different question.

The trial court prefaced its discussion of the statutory factors involving a child’s “best

interests” as follows:

The plaintiff has timely filed a complaint to determine parentage, custody,

child support, and parenting time. Accordingly MCL 722.1443(13)4 [sic MCL

722.1443(4)] directs that the Court may refuse to enter an order determining that a

child is born out of wedlock if the Court finds evidence that the order would not

be in the best interest the child.

The court proceeded to discuss best-interest factors (d), (f), and (g). After reviewing the

evidence related to these factors, the court reiterated that it had found “by clear and convincing

evidence” that Demski was MP’s “biological father,” but made no specific comment as to the

standard of proof it had applied when analyzing the statutory factors. Rather, the court appeared

to separate its “clear and convincing” biology finding from its best-interest determinations:

(g) Other factors that may affect the equities arising from the disruption of the

father-child relationship.

(h) Any other factor that the court determines appropriate to consider.

The parties agreed that factors (a), (b), and (c) were not applicable to this case.

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The Court is fully persuaded, having placed as indicated, the

determination of what weight’s to be given to the testimony of witnesses, all

exhibits, all testimony, and clearly that of the expert witness. In light of the

direction and the new direction and law for the State of Michigan, the Court is

going to grant the petition of the plaintiff.

With that, an order, Mr. Banyon, consistent with [the] directive of MCL

722.1445 in terms of the termination of paternity; again, by clear and convincing

evidence that your client is indeed the biological father and the Court having

made specific findings relative to the other factors of the new act, consistent with

MCL 722.717 Section 7, an order for paternity would enter. . . .

A fair reading of this ruling leaves open to question whether the trial court determined that clear

and convincing evidence, rather than an evidentiary preponderance, supported its best-interest

finding under the RPA.

Regardless of which standard of proof applies, I agree with the majority that Demski bore

the burden of persuading the court that determining MP to have been born out of wedlock would

serve her best interests. During his case-in-chief, Demski presented virtually no evidence

addressing MP’s best interests. His testimony focused on himself and the historical events

surrounding MP’s conception and birth, and his justifications for having had no contact with the

child for most of her life. His girlfriend’s testimony centered on the couple’s pit bull and the

reasons that it would pose no danger to MP. She also assured the court that the couple had

discontinued using marijuana. Demski’s mother testified that he had never harmed a child, and

that she was available to assist Demski “in whatever his needs may be.”

Had the trial ended with Demski’s proofs, the record would not have supported a best-

interest finding in Demski’s favor. Demski presented precious little evidence concerning MP’s

needs or interests. Only a miniscule quantum of testimony related to Demski’s plan for dealing

with MP’s cognitive and emotional responses to the insertion of a new father in her young life.

Aside from his cellular contribution to MP’s conception, Demski offered no evidence that

disestablishing Jeffrey’s paternity would advance the child’s best interests.

The Petlicks’ evidence more directly addressed the RPA’s best-interest factors, primarily

via the testimony of psychotherapist Robin Zollar. No discussion ensued during the trial,

however, regarding the standard of proof applicable to the trial court’s evaluation of Zollar’s

testimony, or that of any other witnesses, regarding MP’s best interests. To the extent the

majority endorses a preponderance standard, I disagree.

Given that RPA proceedings implicate weighty interests for both parents and children, I

believe that the clear and convincing standard must govern the best-interest determination.

Where a statute is silent as to the applicable standard of proof, the issue has “traditionally been

left to the judiciary to resolve.” Woodby v Immigration & Naturalization Serv, 385 US 276, 284;

87 S Ct 483; 17 L Ed 2d 362 (1966). The standard of proof utilized by a court “reflects not only

the weight of the private and public interests affected, but also a societal judgment about how the

risk of error should be distributed between the litigants.” Santosky v Kramer, 455 US 745, 755;

102 S Ct 1388; 71 L Ed 2d 599 (1982). “The function of a standard of proof, as that concept is

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embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder

concerning the degree of confidence our society thinks he should have in the correctness of

factual conclusions for a particular type of adjudication.’ ” Addington v Texas, 441 US 418, 423;

99 S Ct 1804; 60 L Ed 2d 323 (1979) (citation omitted). “[W]hile private parties may be

interested intensely in a civil dispute over money damages, application of a ‘fair preponderance

of the evidence’ standard indicates both society’s ‘minimal concern with the outcome,’ and a

conclusion that the litigants should ‘share the risk of error in roughly equal fashion.’ ” Santosky,

455 US at 755 (citation omitted).

I readily acknowledge that when a statute is silent regarding the applicable standard of

proof, the default position is an evidentiary preponderance. However, the United States Supreme

Court has “mandated an intermediate standard of proof—‘clear and convincing evidence’—when

the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more

substantial than mere loss of money.’ ” Id. at 756, quoting Addington, 441 US at 424. The

interests at stake here implicate the very essence of being a parent: the right to make decisions

regarding a child’s care, control, health, education and association, and the ability to maintain

inviolate a family’s integrity. “A paternity suit, by its very nature, threatens the stability of the

child’s world.” McDaniels v Carlson, 108 Wn2d 299, 310; 738 P2d 254 (1987). Permanently

stripping Jeffrey of his fatherhood of MP deprives both MP and Jeffrey of their mutual liberty

interests in a continuing parent-child relationship. In my view, the parties’ competing rights and

interests qualify as “particularly important” and “more substantial than mere loss of money,”

necessitating application of a standard of proof more demanding than a mere preponderance.

And I agree with the Washington Supreme Court in McDaniels: “Where these rights come into

conflict, the rights of the child should prevail.” Id. at 311.

I acknowledge that in cases involving the termination of parental rights, the

preponderance of the evidence standard applies to a court’s best-interest determination. In Re

Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). In so holding, this Court stressed that the

clear and convincing standard applies to the first stage of termination proceedings, in which a

court determines whether the moving party has demonstrated a statutory ground supporting

termination of a parent’s constitutional rights to the care and custody of a child. Id. at 86.

Applying the due process analysis set forth in Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47

L Ed 2d 18 (1976), the Moss Court explained that during the termination stage, “the use of error-

reducing procedures[] such as the heightened standard of proof of clear and convincing

evidence” favors the constitutional interests at stake. Moss, 301 Mich App at 87. Once a finding

of statutory grounds for termination has been made, however, “the interests of the child and the

parent no longer coincide, and the need for a heightened standard of proof is not present in the

best-interest stage.” Id. at 88.

The procedure set forth in the RPA meaningfully differs from that of a termination case.

Under the RPA, a trial court must consider a child’s best interests when considering whether to

declare a child born out of wedlock. MCL 722.1443(4). This initial stage of RPA proceedings

corresponds to the termination stage in an action brought under MCL 712A.19b. As in an action

seeking the termination of parental rights, a presumed father under the RPA maintains a liberty

interest in the custody of a child—and the child in the custody of her parent—until clear and

convincing grounds justify severing that relationship. And the RPA clearly contemplates that a

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judge may find that despite clear and convincing DNA evidence of paternity, a child’s best

interests would be jeopardized by the interruption of her stable and intact family life.

Although the Child Custody Act (CCA), MCL 722.21 et seq., applies in a different

setting, it guides my reasoning regarding the appropriate standard of “best interests” proof in a

revocation of paternity case.3 MCL 722.25(1) directs that “If the child custody dispute is

between the parent or parents and an agency or a third person, the court shall presume that the

best interests of the child are served by awarding custody to the parent or parents, unless the

contrary is shown by clear and convincing evidence.” The Supreme Court elaborated in Hunter

v Hunter, 484 Mich 247, 265; 771 NW2d 694 (2009): “A third party seeking custody must meet

a higher threshold. He or she must establish by clear and convincing evidence that it is not in the

child’s best interests under the factors specified in MCL 722.23 for the parent to have custody.”

Similarly, a court may not “issue a new order so as to change the established custodial

environment of a child unless there is presented clear and convincing evidence that it is in the

best interest of the child.” MCL 722.27(1)(c). Our state’s jurisprudence has “consistently

recognized” that the presumption of legitimacy arising from a child’s birth to a married mother

may be overcome only by a showing predicated on clear and convincing evidence. In re KH,

469 Mich 621, 634-635; 677 NW2d 800 (2004). As MP’s legal father, Jeffrey was entitled to a

presumption that MP’s best interests would be served by his continuation in that role. See MCL

722.25(1).

In enacting the RPA, the Legislature left the statutory presumptions intact. Despite that

the RPA expands the right of putative fathers to challenge the paternity of a child born within a

marriage, the law rebuttably presumes that a child’s best interests are served by maintaining that

relationship, regardless of biological “truth.” Our Supreme Court has never hesitated to assign a

clear and convincing standard of proof to the evidentiary task of rebutting a statutory

presumption. See Reed v Breton, 475 Mich 531, 541; 718 NW2d 770 (2006).

At the outset of these proceedings, Demski was not MP’s parent. Thus, until the trial

court entered its order of filiation, Demski remained a “third person.” See MCL 722.22(j). Even

armed with the DNA results confirming his biological connection, Demski had no inherent right

to a declaration of his paternity. MCL 722.1443 subsections (4) and (5) underscore that DNA is

not determinative in an action brought under the RPA. By commanding consideration of a

child’s best interests as part and parcel of the RPA inquiry, the Legislature placed the child’s

interests on a footing at least equal to that of DNA. Moreover, the statute’s structure establishes

that the best-interest determination must precede entry of an order declaring that a child was

3

Our Supreme Court similarly drew upon other statutes when it determined the standard of proof

for actions brought under the Whistleblowers Protection Act, MCL 15.361 et seq.: “Because

whistleblower claims are analogous to other antiretaliation employment claims brought under

employment discrimination statutes prohibiting various discriminatory animuses, they ‘should

receive treatment under the standards of proof of those analogous [claims].’ ” Debano-Griffin v

Lake Co, 493 Mich 167, 175-176; 828 NW2d 634 (2013) (citation omitted, alteration in

original).

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born out of wedlock. The parental rights and concomitant rights of an alleged father (such as

Demski) emerge only after a court has conducted a best-interest inquiry.

The RPA’s ordering of priorities compels dual conclusions: (1) during the RPA

proceedings, Demski’s interest in establishing his paternity was subordinate to MP’s best

interests, and (2) as MP’s legal father, Jeffrey enjoyed a presumption that MP’s best interests

would be served by maintaining the status quo. In structuring the RPA in this fashion, the

Legislature implicitly declared that a child’s best interests may outweigh a genetic link between a

child and a stranger. And although the Legislature did not specify the standard of proof

applicable to best-interest determinations under the RPA, it did not enact the statute in a vacuum.

The principles that only clear and convincing evidence of a child’s best interests justify

disrupting an established environment or depriving a legal father of his paternal rights are firmly

fixed in family law. I cannot conclude that the Legislature intended to abandon the heightened

standard of proof in a directly analogous custodial context simply because it failed to reiterate it

in the RPA.

Orders entered under the RPA have grave and far-reaching consequences.

Disestablishing Jeffrey’s paternity renders him a legal stranger to MP, despite that Jeffrey and

Cassidie will continue to raise her as parental partners and will appear to the world (such as

MP’s school and friends) as her parents. As Judge Kirsten Frank Kelly pointed out in Helton v

Beaman, 304 Mich App 97, 126; 850 NW2d 515 (2014) (KF KELLY, J., concurring), if Cassidie

were to die, Jeffrey “would . . . have to seek custody as a third party and there is no guarantee

that he would succeed or even have standing.” Regardless of subsequent custody or parenting

time decisions, inserting a new father into a child’s life is inherently destabilizing. MP looked to

Jeffrey for fulfillment of her needs. She understood that he, and only he, was her dad.

Disconnecting and thereby forever altering that relationship risks incalculable damage to a

child’s development. In my view, the Legislature recognized as much by explicitly permitting a

court to disregard biology and to enforce the presumption favoring stability and marriage.

Thus, I distill from the RPA’s framework and its statutory background that the reciprocal

rights of a married father and his child may not be disrupted absent clear and convincing proof

that such infringement serves a child’s best interests. Adoption of this higher standard of proof

ensures that the evidence supporting a revocation of paternity decision meets “the degree of

confidence our society thinks [a factfinder] should have in the correctness of factual

conclusions” for this type of adjudication. Santosky, 455 US at 755.

Furthermore, the evidence presented during the RPA hearing did not clearly and

convincingly demonstrate that MP’s best interests would be served by severing Jeffrey’s paternal

rights and inserting Demski in that role. Even under a preponderance standard, the trial court’s

best-interest findings contravened the great weight of the evidence.

The court recognized that under factor (d), Jeffrey and his daughter “have a strong

father/daughter bond of reciprocal love evidenced by tender and affectionate interaction,” and

that Demski had no established relationship with the child. This factor militated against

revoking Jeffrey’s paternity. Factor (e) requires consideration of “the age of the child.” The trial

court observed, “There is no contest to the date of birth, and almost two and a half year old age

for [MP].” This “finding” omits mention of the testimony of psychologist Robin Zollar

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regarding the cognitive abilities and emotional capacities of two-year-old children. In my view,

Zollar’s unchallenged testimony supports that affiliating Demski would not serve MP’s best

interests.

Zollar explained that at MP’s age, “children are still very dependent physically and

emotionally on a parental caretaker[.]” Further, Zollar stressed, “it is also an age that is

influenced by the ability to communicate and the ability to receive information.” Although MP

could speak using three-word sentences, “her receptive language skills and her expressive

language skills are at a point where she can’t always express herself or always understand,” as is

“normal” at her age. Zollar explained that at two-and-a-half years of age, a child’s receptive

language skills do not encompass the idea of a new parent, and the child lacks “the ability to

resolve conflicts or feelings.” Accordingly, a two-and-a-half-year old is “less likely” to

understand the role of a new parent. “[T]hey can’t talk about it,” Zollar explained, because they

have not yet developed the required language skills. A child’s inability to articulate confusion

and distress may precipitate very real trauma. Zollar highlighted that “change in the parental

family structure” may produce “mental anxiety. It can cause some acting out behaviors, such as

problems with sleep, different things for different children. Frustration and anger.” Zollar

continued:

Two and a half can be a pretty frustrating anger age anyway, because

they’re starting to, what we call “individuate,” they’re beginning to separate and

see themselves as a little being, as opposed to just a part of the parents. . . . And

so there’s a lot going on at . . . that particular developmental age, with not the

ability to be able to utilize language to resolve it or to understand it . . . .

In my view, the great weight of the evidence supported Zollar’s testimony that because of

her age, MP’s best interests would not be served by opening the door to a situation she lacked the

ability to understand or discuss. Furthermore, the trial court’s failure to consider the age-specific

evidence addressing MP’s best interests constitutes legal error.

Zollar also provided the most useful evidence regarding factor (f), “[t]he harm that may

result to the child.” On direct examination, Zollar admitted that she had not met Demski, and

could not offer opinions regarding him in particular. Generally, she offered, introducing a new

person “as an individual” would be “less confusing” than introducing the new person as a parent.

Zollar’s testimony continued as follows:

They have a mom and they have a dad, and I think it can be very difficult for kids

when somebody says, “Oh, I’m your other dad” or “I’m your real dad” or “I’m

your dad too.” I think that’s very confusing, particularly when you’re fairly

young. I think it’s pretty hard to put that into any perspective. I think that

different issues happen when you’re older and that happens, but I think it’s pretty

basic when you’re two and [a] half years old that that’s going to be pretty

confusing.

***

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Q. So let’s get back to the factor. Do you have an opinion in this case,

again based on observation, experience and all that, whether introducing a new

father figure, be that Mr. Demski or anyone else, would cause harm to [MP]?

A. It could.

Q. . . . And . . . what type of harm could result?

A. . . . I think given her age, I think, and her reticence around new people,

I think that could cause her to feel pretty insecure and fairly threatened and pretty

confused. And the confusion may cause the feeling threatened, but I think it’s

still going to leave her feeling pretty vulnerable.

Zollar elaborated that adding a new “parental figure when a parental figure already exists

. . . can sometimes create some alienation between the child” and the original parenting figure.

The concomitant confusion “can lead to some anger” or “pulling back” from the original father.

Additionally, Zollar emphasized, introducing a new parent can cause “some real anxiety,

particularly dependent on how that introduction is made, how that relationship is expected or

requested to proceed.” She concluded: “And sadly, there are many times that the child isn’t

taken into consideration, the parents are.”

On cross-examination, Zollar reiterated that introducing a new parent could harm a child,

while admitting that it could also benefit the child. She clarified that if the new parent supports

the child emotionally “[f]or a sustained period of time,” the child could benefit. As Zollar’s

testimony concluded, the Petlicks’ attorney (Kurt Armstrong) returned to the issue of harm to

MP:

Q. Is it more likely that harm would result to [MP] by introducing any

new parent figure at this time in her life?

Mr. Banyon: Objection. I don’t believe she can form an opinion on that.

Mr. Armstrong: Well, I think she can.

The Court: Now, I - - the Court thinks she can, based on the foundation

that’s there and then her expert - - we’ll overrule the objection.

Now, if you can’t, we’ve got a problem. Can you answer the question?

[Zollar]: I’ll try. I think it depends on the things that I talked about

earlier: the commitment, the way it is done, and the sustainability and the

willingness of all the parties to work towards this happening in a healthy way. I

have some cases that I’m working with right now with preschool-age children

where there are very similar issues. And those are not new issues, I’ve had those

issues for years that I’ve had to work with. But so much is dependent on that

commitment. The motive of the adults involved, the commitment, the ability to

listen and learn when suggestions are given by someone whose primary interest is

the child.

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Grownups can take care of themselves, little kids can’t. And so they need

somebody that can act as an advocate for that relationship going in a healthy

direction. And I think if that is available, I think it can be a very good thing for a

child. I think if somebody says, “Oh, well, yeah, we’ll just her [sic] for an hour or

so and she’ll be with . . . Uncle Bob and Aunt Suzie and dad and she’ll be fine,” I

think that is not taking into account the child’s needs. I think that is only focusing

on the adult needs and I think that is wrong; because she has no way to say, “No,

I’m not going to do it.” She has no way to ask questions at this point. She has no

way to understand.

So it’s nothing personal about any individual. It’s what’s going to be best

for this child. And I - - I strongly believe that, because I’ve seen really awful

things happen when that doesn’t happen.

Based on this testimony, the trial court found:

The testimony found to be most reliable relative to determining harm is that of the

expert witness. . . .

Robin Zollar conducted three sessions, meeting one each with the

defendants individually and a joint session including the minor, providing

opportunity to observe the minor’s interactions with defendants. She confirmed

that the minor is initially reticent around new people. Her responses however to

the questioning related directed to the harm factor address less the issue of

introduction of plaintiff’s interaction with the minor, but rather the question of

how that would occur and expectations upon the minor. These are factors she was

not afforded the opportunity to ask the plaintiff but would have desired to do so.

Her essential concerns articulated are first the limited verbal skills of the

minor, and secondly, the willingness of adults to get along; their commitment.

She did finally opine that [MP] could benefit from sustained commitment from

the alleged father.

That MP “could benefit from sustained commitment from the alleged father” hardly

qualifies as clear and convincing evidence that MP would benefit from a change in her paternity,

or that she would not be harmed by the profound disruption of her life occasioned by the

introduction of a new parent. In my estimation, the trial court’s resolution of the harm inquiry

rested on speculation, not proof. Stated alternatively, the evidence was in equipoise.

Substituting Demski as MP’s new father could hurt MP, or it might benefit her.

It bears emphasis that Demski bore the burden of proving that it was in MP’s best

interests to revoke Jeffrey’s paternity and to substitute Demski as her new father. Demski

brought forward no evidence regarding MP or her interests. And Demski offered no evidence

that the very real harms Zollar described could be avoided or mitigated. Indeed, Demski never

even acknowledged awareness of any emotional dangers for MP attendant to his parenthood

quest.

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The majority correctly observes that “Zollar’s expert testimony supported both a

conclusion that MP could be harmed by [Demski’s] introduction into her life and also that his

introduction could benefit her.” In other words, the majority, too, views the evidence on this

score as equally balanced. I believe the majority overlooks the obvious: Demski failed to carry

his burden of proof on this factor.

Factor (g) requires a court to consider “[o]ther factors that may affect the equities arising

from the disruption of the father-child relationship.” The court acknowledged that this factor

required it to consider “identifiable emotional, physical, and financial” equities. The court’s

discussion of this factor was limited to the following paragraph:

Consistent with the testimony of the defendants, they are committed to

each other, and each to [MP], whether Jeffrey Petlick is the identified legal father

because of his bond of love for her and he will continue to support emotionally,

financially, and provide the protections she requires. Equitably for the minor by

law, the plaintiff would be required to provide for [MP]’s financial support.

While Jeffrey’s multi-faceted commitment to MP is both admirable and relevant, the

court avoided discussion of the evidence actually submitted on this score. Zollar expressed that

if a new parent “is willing to make a very serious ongoing workable commitment where they are

willing to work with the other caretakers, all the other caretakers, without being adversarial, then

it can be a very good thing for children.” Unrebutted evidence established that Demski’s desire

to parent MP had been inconsistent, at best. Text messages sent by Demski demonstrate that on

more than one occasion, he expressed interest in “signing over” his parental rights to avoid

paying child support. One message states: “[I] was told to plan on selling my house to afford

this.” Demski answered affirmatively when asked on cross-examination:

You acknowledge that . . . your actions went from starting out, ‘I’m involved, I

went to the doctor’s office,’ to ‘I don’t want to be involved’ in November. ‘I

want to have my rights terminated’ or ‘I don’t want to have any rights, I don’t

want to pay any child support’, correct?

The record simply does not substantiate a clear or convincing likelihood, or an evidentiary

preponderance, that Demski would commit himself and his resources over the long term. His

track record of commitment to MP is hardly consistent or reassuring.

While the trial court’s exercise of its discretion in considering the RPA’s best-interest

factors should be afforded deference, I believe that the evidence clearly preponderates against the

trial court’s factual findings under factors (e), (f), and (g). Because the great weight of the

evidence supported that MP’s best interests would not be served by disestablishing Jeffrey’s

paternity and inserting Demski as her new father, I would reverse the trial court’s orders finding

MP a child born out of wedlock and affiliating Demski.

II. THE CUSTODY AND PARENTING TIME ORDER

The trial court issued its bench ruling under the RPA on July 26, 2013. In that ruling, the

court ordered that Demski meet with Zollar for a “continuing concluding evaluation as it would

relate to the welfare of [MP].” The court continued: “And before any further orders from the

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Court will issue regarding contact of any form, Ms. Zollar needs to complete that and report to

the Court. I think that is related to both custody and parenting time.”

On August 29, 2013, the trial court entered an order memorializing its bench ruling. That

order stated in relevant part: “Child custody and parenting time issues are reserved until further

Order from this Court[.]” On February 4, 2014, without holding an evidentiary hearing or any

record proceedings substantively addressing MP’s custody, the trial court entered an order

awarding Cassidie and Demski joint legal custody of MP, with Cassidie retaining physical

custody. The order stated that Demski would have parenting time “under the supervision of the

Friend of the Court with a goal of achieving reasonable rights of parenting time.” Two weeks

later, the Petlicks moved for reconsideration of the custody and parenting time order, arguing

that the trial court should not have entered it without holding a hearing under the CCA. The trial

court responded on May 28, 2014, by denying the motion, and entering a seven-page written

order reviewing the court’s findings under the best-interest factors of the RPA. For the first time,

the court detailed its findings regarding MP’s established custodial environment and the best-

interest factors stated in the CCA.

The majority holds that the Petlicks failed to preserve their objection to the procedure

utilized by the trial court, specifically, the trial court’s failure to hold a custody hearing. The

majority has either misapprehended the chronology of events or has disregarded basic

preservation principles.

No record evidence supports that the Petlicks could or should have anticipated that the

trial court would issue a custody and parenting time order without holding a separate evidentiary

hearing. Accordingly, the Petlicks could not have raised an objection to the trial court’s

procedure until the trial court sua sponte entered its February 4, 2014 order.

The Petlicks objected to the trial court’s custody order in a timely fashion, 14 days after

that order entered. They had no basis for objecting earlier, as they had no awareness that the trial

court planned to enter a final custody order without holding a hearing as required under the

CCA. They challenged the trial court’s custody and parenting time order with a motion for

reconsideration because reconsideration was the only vehicle available to them. I know of no

precedent requiring litigants to read tea leaves or judicial hints to foresee a ruling not yet made.

In my view, the issue raised in the Petlicks’ motion for reconsideration is fully preserved. See

Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). As such, it

should be reviewed de novo. See Schlender v Schlender, 235 Mich App 230, 232; 596 NW2d

643 (1999) (“This Court reviews a claim of legal error [there the failure to conduct an

evidentiary hearing] de novo.”).

The trial court committed two serious errors warranting reversal of its custody and

parenting time order. First, it rendered its order in the absence of an evidentiary hearing during

which the parties could introduce evidence relevant to the factors set forth in the CCA and cross-

examine witnesses. Second, in crafting its ruling, the trial court considered ex parte evidence

which it deliberately withheld from the parties. Both errors should fundamentally undermine a

reviewing court’s confidence in the trial court’s custody and parenting-time rulings.

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The CCA “is intended to erect a barrier against removal of a child from an established

custodial environment and to minimize unwarranted and disruptive changes of custody orders.”

Heid v AAASulewski (After Remand), 209 Mich App 587, 593-594; 532 NW2d 205 (1995).

Here, the trial court correctly recognized that MP’s established custodial environment resided

with Cassidie.

A court may not issue a new order changing a child’s established custodial environment

absent “clear and convincing evidence that it is in the best interest of the child.” MCL

722.27(1)(c).4 The court rules contemplate that a court will conduct an evidentiary hearing in

contested custody cases. MCR 3.210(C)(1) provides that “[w]hen the custody of a minor is

contested, a hearing on the matter must be held within 56 days (a) after the court orders, or (b)

4

I use the term “custody” in this dissenting opinion to also encompass parenting time. A child’s

best interests govern parenting time determinations. Berger v Berger, 277 Mich App 700, 716;

747 NW2d 336 (2008). “Both the statutory best interest factors in the Child Custody Act, MCL

722.23, and the factors listed in the parenting time statute, MCL 722.27a(6), are relevant to

parenting time decisions.” Shade v Wright, 291 Mich App 17, 31; 805 NW2d 1 (2010).

Parenting time determinations are governed by their own list of best interest factors:

(a) The existence of any special circumstances or needs of the child.

(b) Whether the child is a nursing child less than 6 months of age, or less than 1

year of age if the child receives substantial nutrition through nursing.

(c) The reasonable likelihood of abuse or neglect of the child during parenting

time.

(d) The reasonable likelihood of abuse of a parent resulting from the exercise of

parenting time.

(e) The inconvenience to, and burdensome impact or effect on, the child of

traveling for purposes of parenting time.

(f) Whether a parent can reasonably be expected to exercise parenting time in

accordance with the court order.

(g) Whether a parent has frequently failed to exercise reasonable parenting time.

(h) The threatened or actual detention of the child with the intent to retain or

conceal the child from the other parent or from a third person who has legal

custody. A custodial parent's temporary residence with the child in a domestic

violence shelter shall not be construed as evidence of the custodial parent's intent

to retain or conceal the child from the other parent.

(i) Any other relevant factors. [MCL 722.27a.]

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after the filing of notice that a custody hearing is requested[.]” Ample case law supports that a

court cannot order a custodial change without first holding a hearing. See Mann v Mann, 190

Mich App 526, 531-532; 476 NW2d 439 (1991) (“Permitting a court to even temporarily change

custody solely on the basis of a Friend of the Court referee’s recommendation and without

holding a hearing would circumvent and frustrate one of the purposes of the Child Custody

Act—to minimize the prospect of unwarranted and disruptive changes of custody.”), and Pluta v

Pluta, 165 Mich App 55, 60; 418 NW2d 400 (1987) (“We do not believe that the trial court

should be allowed to circumvent and frustrate the purpose of the law by issuing an ex parte order

changing custody without any notice to the custodial parent or a hearing on the issue whether

clear and convincing evidence was presented that a change of custody was in the child’s best

interest.”).

The majority dispenses with the need for a hearing by holding that the bench trial under

the RPA sufficed. The majority observes, “The trial featured seven witnesses providing several

hundred pages worth of testimony and dozens of exhibits presented by the parties.” While that

may be true, the trial did not “feature” a full exposition of evidence relevant to MP’s best

interests under the CCA because the trial court refused to consider it. Equally important, the trial

court denied the parties an opportunity to cross-examine Zollar regarding the custody and

parenting-time recommendations which ultimately guided the trial court’s decisions.

During Zollar’s testimony at the RPA trial, the Petlicks’ counsel attempted to elicit her

opinion regarding parenting time in the event the court ordered it. Demski’s counsel objected,

arguing that that Zollar’s opinion was not relevant “to these proceedings”:

Q. The - - the - - the Court may ultimately determine that - - that Mr.

Demski does have some parenting time; could happen. If - - if - - if that occurs,

would - - would you be willing to - - to act and to assist in any bridging - -

Mr. Banyon: I’m - - I’m going to object to this question, Your Honor. It’s

certainly not relevant to these proceedings.

Mr. Armstrong: I’ll withdraw it. I’m just trying to help, Judge. I’ll

withdraw the question. I’m done with the witness.

The Court. All right, it’s withdraw[n].

Shortly thereafter, the Petlicks’ attorney tried to question Zollar regarding her experience in

“custodial dispute[s]” not involving abuse or neglect. The trial court sustained Demski’s

relevance objection:

Q. And how many children have you assessed under the age of two and a

half not related to sexual abuse?

A. Well, probably out of the several hundred, probably 150 or so, given

the fact that I frequently get referrals regarding other - - other issues that involve

kids - - or children under the age of two and a half.

Q. And how many of that hundred or so have you - -

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Mr. Armstrong: Your Honor, I believe she said 150.

Q. - - 150 or so have you assessed with respect to a custodial dispute not

involving abuse or neglect?

Mr. Armstrong: Your Honor, I’ll object. This isn’t a custodial dispute.

Mr. Branyon: It involves custody, - -

Mr. Armstrong: Well, - -

Mr. Banyon: - - parenting time.

Mr. Armstrong: - - it may become one, but it’s not at this point, Your

Honor.

The Court: I’m - - and your objection is?

Mr. Armstrong: My objection is it’s not relevant. I attempted to go into

that particular area and he cut me off, and so apparently he doesn’t want to go into

that area; and, therefore, it’s not relevant today. We could deal with that later

apparently. If - - if the Court - -

The Court: All right. I’m going to - - I’m going to sustain the objection as

to where we are now. . . .

These excerpts illustrate that neither the parties nor the trial court intended that the RPA

hearing would encompass a best-interest hearing under the CCA. Zollar’s views were not aired

or subjected to scrutiny through cross-examination. Not a word was spoken by the parties or the

trial court regarding most of the best-interest factors under the CCA.5 Nor does the record

5

The best interest factors set forth in MCL 722.23 are:

(a) The love, affection, and other emotional ties existing between the parties

involved and the child.

(b) The capacity and disposition of the parties involved to give the child love,

affection, and guidance and to continue the education and raising of the child in

his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with

food, clothing, medical care or other remedial care recognized and permitted

under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment,

and the desirability of maintaining continuity.

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substantiate that the parties agreed to forego a separate best-interest hearing in the interest of

conducting an omnibus proceeding. In my view, the trial court clearly and substantially erred by

relying on a limited record to decide the issues of custody and parenting time. See Crampton v

Crampton, 178 Mich App 362, 363; 443 NW2d 419 (1989) (“It was not sufficient for the court to

rely on the testimony and evidence from the referee’s hearing and to limit the taking of further

testimony as was done here.”).

Moreover, a child-custody hearing demands the presentation of admissible evidence

subject to cross-examination. The trial court requested and entertained “a report with

recommendations relative to Custody and Parenting time,” authored by Zollar. According to the

trial court’s written opinion denying the Petlicks’ motion for reconsideration, the report was

“received by the court [on] November 20, 2013.” Zollar’s report is not in the record and

apparently was not provided to counsel. Yet according to the trial court’s opinion on

reconsideration, the substance of the report formed the basis for the trial court’s parenting time

order.6

MRE 706 allowed the trial court to appoint Zollar as an expert witness. However,

(e) The permanence, as a family unit, of the existing or proposed custodial home

or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of

sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a

close and continuing parent-child relationship between the child and the other

parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed against or

witnessed by the child.

(l ) Any other factor considered by the court to be relevant to a particular child

custody dispute.

6

That the trial court relied on Zollar’s report is supported by many comments within its opinion

on reconsideration: “The court reviewed the recommendation in light of all proofs preserved,”

“The Friend of the court was required to establish a bridging schedule for the exercise of the

initial parenting time to be held in a ‘therapeutic setting’ under the direction of counselor Robin

Zollar,” “The court upon consideration of her report and recommendation then fashioned the

order from which Defendants seek reconsideration,” Demski’s “parenting time shall consistent

with Robin Zollar’s recommendation be supervised by her in a therapeutic environment.”

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[a] witness so appointed shall advise the parties of the witness’ findings, if any;

the witness’ deposition may be taken by any party; and the witness may be called

to testify by the court or any party. The witness shall be subject to cross-

examination by each party, including a party calling the witness. [MRE 706(a).]

The court did not advise the parties that Zollar had made any findings until issuing its opinion on

reconsideration and never informed the parties of their substance and content. Zollar was not

subject to cross-examination before the trial court (apparently) incorporated Zollar’s opinions

into its custody and parenting-time decision. Ultimately, it is unknown whether the trial court

actually adopted Zollar’s recommendations as she expressed them. This possibility buttresses

my belief that the trial court’s procedure violated MRE 706.

The Code of Judicial Conduct does not preclude all ex parte communications with

witnesses. However, it requires that a judge who elects to “obtain the advice of a disinterested

expert on the law applicable to a proceeding before the judge” provide “notice to the parties of

the person consulted and the substance of the advice, and affords the parties reasonable

opportunity to respond.” Code of Judicial Conduct, Canon 3(A)(4)(b). This exception to the

general rule barring ex parte communications comes closest to addressing what occurred in this

case. Here, the trial court consulted Zollar regarding expert opinion rather than “the law.” And

the trial court failed to afford advance notice of Zollar’s participation in this stage of the

proceedings, or the substance of her recommendations, to the parties. The report’s absence from

the record precludes this Court’s review of the trial court’s interpretation of Zollar’s

recommendations. I find the trial court’s procedure in this highly contested custody case deeply

troubling.

The majority, however, shrugs off any claim that the Petlicks suffered a violation of their

rights, summarily stating that “[t]he Confrontation Clause does not apply to civil proceedings.” I

am not reassured. The right to confront and cross-examine witnesses “is implicit in our historical

concepts of due process and of fair trial[.]” Durant v Stahlin, 375 Mich 628, 649; 135 NW2d

392 (1965). In Hayes v Coleman, 338 Mich 371, 380-381; 61 NW2d 634 (1953), our Supreme

Court favorably quoted the following language from a Missouri case, Gurley v St Louis Transit

Co, 259 SW 895 (Mo App, 1924):

The right of a litigant to cross-examine an adverse witness within proper bounds

is an absolute right, and it is not within the discretion of the court to say whether

or not the right will be accorded. The right of cross-examination is regarded of

such consequence that it is made one of the chief grounds for the exclusion of

hearsay evidence. If the right to cross-examine an adverse witness be denied or

unduly limited or restrained, the testimony given by the witness would, in a very

marked degree, partake of the character of hearsay testimony. It is always

permissible upon the cross-examination of an adverse witness to draw from him

any fact or circumstance that may tend to show his relations with, feelings toward,

bias or prejudice for or against, either party, or that may disclose a motive to

injure the one party or to befriend or favor the other. The party producing a

witness may not shield him from such proper cross-examination for the reason

that the facts thus elicited may not be competent upon the merits of the cause.

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The majority concedes that it would have been “better practice to have received [Zollar’s]

report before the conclusion of proofs at trial, and to have included that report in the trial court

record[.]” Yes, it would. But the majority’s casual observation misses the point. “Cross-

examination is a critical element in the truth-determining process.” Brock v Roadway Express,

Inc, 481 US 252, 276; 107 S Ct 1740; 95 L Ed 2d 239 (1987). It enhances the quality and the

reliability of the decision-making process. The Petlicks had no opportunity to challenge and to

test Zollar’s opinions in a manner that would potentially influence the trial court’s decision-

making process. Whether Zollar once served as the Petlicks’ expert witness is of no moment,

given that she later provided crucial information to the trial court in a manner that can only be

described as secret. Her opinions and recommendations may have been incomplete or

misleading or based on improper criteria. The majority is satisfied with remaining in the dark.

In my view, MP’s best interests demand an airing.

Zollar’s opinions and recommendations are not matters of national security. They guided

the Friend of the Court’s parenting time recommendations and the trial court’s orders, and the

majority has proposed no logical basis for excluding those opinions from effective and

adversarial dissection. I would hold that the trial court clearly erred by denying the Petlicks an

opportunity to review Zollar’s report and to cross-examine her before issuing its custody and

parenting-time decisions.

In urging remand to the trial court, I concede that proceeding according to the well-

established rules governing custody and parenting-time determinations risks once again

destabilizing MP. But in my view, the trial court’s failure to hold an evidentiary hearing and its

consideration of ex parte evidence contaminated its best-interest findings relevant to custody and

parenting time. I have no confidence that MP’s best interests have been served by the court’s

order, because I have no means of understanding its evidentiary foundations. Because the trial

denied MP and Cassidie the most rudimentary form of due process, its decisions lack inherent

integrity and must not stand affirmed.

/s/ Elizabeth L. Gleicher

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