Father Entitled to Hearing on Custody
Case: Sims v. Verbrugge
Court: Michigan Court of Appeals ( Unpublished Opinion )
Child custody; The Acknowledgment of Parentage Act (MCL 722.1001 et seq.); MCL 722.1003(1); MCL 722.1004; Effect of acknowledgment of parentage (AOP); MCL 722.1006; Eldred v. Ziny; Foster v. Wolkowitz; The Child Custody Act (MCL 722.21 et seq.); MCL 722.27(1); Proper cause or a change of circumstances; Vodvarka v. Grasmeyer; Effect of a child being illegitimate; MCL 722.1 & MCL 722.2; Sinicropi v. Mazurek (On Remand)
The court held that the defendant-father was entitled to a hearing on legal custody. The parties, who were unmarried, had a daughter (LV), and signed an AOP. They ended their relationship, but arranged for defendant to see LV. The trial court later ordered him to pay child support, and indicated that plaintiff-mother had physical custody of the child. When plaintiff moved further away from defendant, the trial court entered a parenting time arrangement. When she sought to move across the country, he sought joint custody. The trial court denied his motion, finding plaintiff had sole legal custody of LV and that defendant had not fulfilled his statutory burden to seek a modification or amendment to a custody order. The referee found “plaintiff had legal custody of LV as the mother of an illegitimate child.” Defendant sought a de novo review of this ruling, but the trial court adopted the referee’s analysis. On appeal, the court rejected his argument that the parties had joint legal custody, but held that he was entitled to a hearing on remand for a determination as to legal custody. It found that “the trial court erred by requiring defendant to demonstrate proper cause or a change in circumstances when he moved for a change in” legal custody as “there was no previous judgment or order concerning legal custody, for although plaintiff enjoyed initial legal custody of LV, it was granted by operation of law, not a judicial determination.” It noted that “by requiring defendant to demonstrate by a preponderance of the evidence proper cause or a change in circumstances—the standard required to modify or amend an existing judgment or order—the trial court erred, imposing a higher burden on defendant in violation of MCL 722.1006.” Further, the trial court’s interpretation that “MCL 722.1 and MCL 722.2 provided that mother received sole legal custody of LV as a result of LV being an illegitimate child . . . is at odds with MCL 722.1004’s mandate that a child that is the subject of an AOP is treated as a child born in wedlock and not as illegitimate.” Finally, it found that the trial court “did not err in choosing not to hear defendant’s argument as to a change in physical custody[.]” Affirmed in part, reversed in part, and remanded.