Opinion
Docket No. 106655.
Decided December 6, 1988. Leave to appeal applied for.
Scholten, Fant Marquis, P.C. (by R. Neal Stanton and Susan A. Jonas), for plaintiffs.
VanderPloeg, Ruck, Luyendyk Wells (by David M. Wells), for defendant.
Defendant appeals as of right from a judgment of the Ottawa Circuit Court granting plaintiffs full legal custody of defendant's minor daughter and ordering defendant to comply with a writ of habeas corpus by releasing the child into plaintiffs' custody. We reverse the decision of the circuit court and remand the case for entry of an order dismissing plaintiffs' action and directing forthwith the return of the child to her mother.
The controlling issue here is whether the circuit court had jurisdiction to consider plaintiffs' claims to defendant's minor child.
Plaintiffs brought a complaint seeking a writ of habeas corpus or order to show cause to obtain custody of the five-year-old child under the Child Custody Act, MCL 722.26; MSA 25.312(6), and pursuant to MCR 3.303(M). The Child Custody Act does not give a party substantive rights to custody of a child. Ruppel v Lesner, 421 Mich. 559, 565; 364 N.W.2d 665 (1984). It authorizes forms of relief and sets forth procedures and creates standards for resolving custody claims. Id.
In the absence of some other basis for the court to assert jurisdiction over the minor child, such as previous judicial intervention in divorce proceedings or neglect proceedings, the circuit court may not entertain an action for custody instituted by a nonparent. Id.; Marshall v Beal, 158 Mich. App. 582, 589; 405 N.W.2d 101 (1986); Hastings v Hastings, 154 Mich. App. 96, 101; 397 N.W.2d 232 (1986), lv den 428 Mich. 859 (1987). Cf. In re Danke, 169 Mich. App. 453; 426 N.W.2d 740 (1988) (court asked to modify existing child custody order). A nonparent may not create a child custody dispute under the act simply by filing a circuit court complaint alleging that the child's best interests are served by giving custody to the nonparent. Ruppel, supra, p 566; Meachum v Bower, 156 Mich. App. 661, 665; 402 N.W.2d 66 (1986).
That § 6 of the act, MCL 722.26; MSA 25.312(6), mentions the writ and that plaintiffs' complaint specifically sought a writ does not create a situation requiring a different result. The cases cited by plaintiffs do not indicate that the availability of the writ in limited circumstances under the act creates an independent basis of jurisdiction. In all of the cases there was a clear legal basis for the custody dispute and for the circuit court to assert jurisdiction, beyond the third party's merely asserting an interest in the child.
For example, In re Maria S Weldon, 397 Mich. 225; 244 N.W.2d 827 (1976), involved a complicated procedural matter involving both the federal and state courts. The probate court had terminated parental rights and approved placement for adoption. The dispute was between the natural rights of the mother, who had changed her mind regarding the adoption, and the rights of the adoptive parents, who had already been given legal custody of the child.
Nor does In re Mark T, 8 Mich. App. 122; 154 N.W.2d 27 (1967), provide authority for using the writ to confer jurisdiction. There the illegitimate father was contesting adoption proceedings instituted by the mother without his consent. At that time, the only means the father could use to assert his parental rights was the writ.
In plaintiffs' other cases, where the court allowed a third party to proceed under a request for a writ, the dispute was between a nonparent with custody and a nonparent claiming a "better" right to custody because of adoption or guardianship proceedings. In re Gould, 174 Mich. 663; 140 N.W. 1013 (1913); Matter of Heather Children, 50 Mich. 261; 15 N.W. 487 (1883); Rosiak v Murphy, 35 Mich. App. 688; 192 N.W.2d 565 (1971).
None of these circumstances are found here. In the instant action, the child was in the mother's custody at the time the request for the writ was made. The limited guardianship, under which the mother had voluntarily suspended her parental rights to assist plaintiffs in maintaining custody of the child, had been dissolved. The circuit court had twice previously dismissed plaintiffs' actions seeking custody under the Child Custody Act on the basis that it lacked jurisdiction. No one had sought to terminate the mother's parental rights on the basis of neglect, abandonment, or some general unfitness. In fact, the circuit court's opinion, while awarding custody to plaintiffs, indicates that the ultimate goal was eventual reunion with the mother at some time in the future.
We note an inconsistency in the circuit court's award of physical and legal custody to plaintiffs and the stated goal of eventually returning custody to the mother. By maintaining custody with plaintiffs, it could be expected that their custodial relationship would become even more firmly established over time. It is conceivable that the mother would be effectively barred from ever regaining custody. Any future attempt to gain physical custody could be countered by an ever-evolving argument that the child's best interests would be served by maintaining her present situation, schooling, activities, and friends. As plaintiffs' custodial environment became even more established, the mother could be faced with a legal burden of persuasion that would be increasingly more difficult for her to meet, see, e.g., Glover v McRipley, 159 Mich. App. 130; 406 N.W.2d 246 (1987), thus effectively terminating her parental rights.
The expert testimony apparently indicated that the needed transitional period could be accomplished while the child lived either with plaintiffs or with her mother. Given the circuit court's stated goal of eventually returning the child to her mother, the open-ended grant of custody to plaintiffs would not appear to be justified.
We are not unmindful of the fact that plaintiffs provided, in the words of the circuit court, "nurture, love and support" to the child for more than half of her life. Nor should this opinion be construed as condoning the defendant's use of self-help. We understand that the transition may be difficult and, at times, even painful for all parties concerned. However, the circuit court was correct the first two times when it found it lacked jurisdiction to hear this matter. That a writ was requested does not change the fact that a nonparent may not create a custody dispute recognizable under the Child Custody Act by simply asserting that the child's best interests are served by giving custody to that nonparent. Ruppel, supra; Marshall, supra; Meachum, supra; Hastings, supra.
Having concluded that this case must be dismissed for lack of subject matter jurisdiction, we need not address the other procedural issues raised on appeal.
We reverse the judgment of the circuit court for lack of subject matter jurisdiction and remand the case for entry of an order dismissing plaintiffs' action and directing forthwith the return of the child to her mother.
Reversed and remanded.