FALCONER v. STAMPS, 313 Mich. App. 598

K. F. KELLY, J. In a three-way child custody dispute involving plaintiff mother, Kristen Alise Falconer (plaintiff); defendant father, Chadwick Jason Stamps, also known as Chad Meyers (defendant); and paternal grandmother, Donna Bryant Weddington (Intervener), plaintiff appeals as of right because, while plaintiff was awarded sole physical and legal custody of the child, the order included extensive grandparenting time with Intervener.

We vacate that portion of the circuit court’s order that granted Intervener grandparenting time given that the issue of grandparent visitation was not properly before the circuit court. I. BASIC FACTS AND PROCEDURAL HISTORY A. PROBATE COURT PROCEEDINGS On October 14,2010, Intervener filed a petition in the Calhoun County Probate Court for appointment of a full guardianship of the two-year-old child under MCL 700.5204(2).

Intervener told the probate investigator that plaintiff and defendant lived with Intervener before the child was born and that all three continued to live with Intervener until defendant moved to Arizona to attend college in February 2010 and plaintiff followed in April 2010. Intervener reported that plaintiff and defendant supported the guardianship and that the child had frequent contact with plaintiff and defendant via telephone calls and video calls using Skype, as well as in-person visits. Intervener was granted full guardianship on November 29, 2010.

Intervener filed an annual report with the court on December 2, 2011, indicating that the parents had now returned to Michigan but that the “[p]arents still lack necessary skills to parent child” and that “neither parent is a suitable guardian for [the child].” The report indicated that the “[c]hild loves parents and vice versa” and that visits took place “as much as possible.” Intervener filed her next annual report on November 30, 2012.

She reported that plaintiff had moved out of the home in November 2012 and her whereabouts were “unknown.” Intervener requested that plaintiffs future visits be supervised by her. On April 9, 2013, plaintiff petitioned to terminate the guardianship. The probate court appointed the child a guardian ad litem (GAL), David Marsh. Marsh’s September 20, 2013 report provided: A. The minor has essentially lived with the guardian, her grandmother, Donna Weddington, all her life. B.

The mother, Kristen Falconer, had a physical abusive and substance abusive relationship with the son of Donna Weddington until sometime in November, 2012 when she moved back to Hastings to be with her family in order to get her life back together. Ms. Falconer has apparently made great strides in that direction in that she is employed, substance free and has stable housing. C. The father, Chadwick Stamps, while living in the same household with his daughter, has had little to do with raising her. D. The guardian/grandmother has done a good job in raising [the child]. E.

Both parties blame the other for the inconsistent contact between [the child] and her mother. F. The minor child desire [s] to remain living with the guardian/grandmother. G. Child Protective Services makes no specific recommendation, stating that both parties are appropriate. This writer believes that Eristen Falconer has done a great job in getting her life together. However, she states that she has only been clean since November, 2012 and did so on her own, without any profession [al] help or support. In addition, there has not been a lot of contact between Ms.

Falconer and her daughter,. . . the blame for which is unclear. The undersigned recommends that this Court institute a specific plan in order to better prepare the minor for potential reunification with her mother. The probate court set forth a court-structured plan on September 23, 2013, requiring plaintiff to, among other things, submit to drug screening and participate in supervised visitation. The plan included a proposed date of March 24, 2014, for terminating the guardianship. Intervener filed her next annual report on December 6, 2013, shortly after the structured plan was implemented.

In the report, Intervener indicated that defendant lived in the same home as the child and saw her every day: “[The child] loves being with her dad! She grows more fond every day. She is completely not interested/reluctant to see her mother.

She cries every time!” Intervener reported that while “[m]other attends 2 hour meeting/visit once a week with [the child], [the child] does NOT enjoy, is very sad + disheartened by each visit. [The child] should not be forced to have a relationship with her mother until ready! [The child] should continue counseling + perhaps Miss Falconer could begin attending. [The child] has been abandoned by her mother 5 times + she is reluctant and afraid.” Intervener requested that the guardianship continue because “the father would like to file for full custody but does not yet have funds to hire attorney.” A couple of days later, Intervener filed a motion to have “another, more appropriate supervisor be chosen” for future supervised visits.

Department of Health and Human Services (DHHS) worker Candace Stack had allowed plaintiffs grandmother, Connie Falconer, to act as supervisor during plaintiffs visits with the child. Intervener complained that Falconer had once tried to “kidnap” the child in 2009 “after a high speed chase.” Included with the motion was a letter Intervener wrote to Judge Michael Jaconette on November 29, 2013, asking how defendant “can apply for custody without an attorney. He has always had physical custody.

He has never abandoned her and she adores him.” This, in contrast with plaintiff who has abandoned the child “5 times over the last five years” and “[w]hen she did reside with us there was little to no parenting involved.” Intervener also included screen shots of email exchanges she had with Stack, even though the exchanges did not cast Intervener in a positive light. The exchanges revealed that Intervener had no intention of presenting the child for supervised visits with plaintiff if those visits included Connie Falconer.

The exchanges also show that Intervener did not agree that plaintiff should see the child twice a week. In a December 1, 2013 report, the child’s counselor, Kathleen Keeder, noted that, although the child had been initially standoffish with plaintiff, “Kristen has followed through with all the recommendations and suggestions made to her to help with the bonding process and help [the child] to feel at ease during the sessions. Kristen has been empathic with [the child], she has validated her feelings even when they are hurtful and has been emotionally supportive.

It is evidence to this clinician that [the child’s] Guardian is not in support of [the child] being reunited with her mother and this is having an adverse affect [sic] on [the child].” In Keeder’s opinion, plaintiff demonstrated an ability to provide a safe and stable home for the child and the two needed to be reunited. On December 11, 2013, Stack filed a report on the case.

Stack, like Keeder, reported that plaintiff was doing a good job at her visits with the child, even though the child would say things like “ T hate you’ ” and “ ‘you are not my mom.’ ” Stack reported that not only did Intervener make scheduling visits difficult, but Intervener was also a distraction to the child by waiting outside of the visitation room or in the bathroom down the hall. The child, knowing Intervener was outside the door or in the bathroom, would ask to use the bathroom several times. Intervener refused to leave the area until security guards got involved.

Once Intervener was out of the area, the child began to warm up to and interact with plaintiff. Stack concluded: [The child’s] emotional well-being is being jeopardized living with Donna Weddington. Ms. Weddington has thwarted any and all efforts of reunification between the child and her mother. It is believed that Ms. Weddington is feeding negative thoughts to [the child] about her mother, Kristen Falconer, instead of being supportive of the relationship. It is a travesty that this reunification period has not been more successful, but it is this worker’s opinion this is solely due to Ms.

Weddington’s attitudes and actions. This worker does not anticipate that Ms. Wed-dington will ever support the reunification of [the child] and her mother. In the meantime, Stack noted that plaintiff has “done an outstanding job recovering from her drug use and is ready to be a full time mother. She has awesome family support in the Hasting [s] area. There is no reason to continue this guardianship, the recommendation is to terminate.” The child’s GAL made a similar recommendation in his December 18, 2013 report: Ms.

Weddington has frequently procrastinated and attempted to circumvent the arrangements made by Child Protective Services to move forward with the plan. She claims that these arrangements are detrimental to and against the best interest of [the child]. Ms. Weddington believes that Kristin [sic] Falconer doesn’t want [the child]; she is jealous of Chad Stamps and is doing this to hurt him. It is this writer’s opinion that Donna Weddington is so desperately afraid of losing custody of [the child] that she grasps at any straw in the attempt to prevent termination of the guardianship.

It is further my belief that Donna Weddington continues to attempt to undermine this process by coaching the minor. RECOMMENDATION: The undersigned recommends that this case continue on track to termination of the minor guardianship as the mother has done all that is asked and required of her. I further recommend that this Court emphasize the need for Donna Weddington to totally cooperate with the Court structured plan especially with the parenting time arranged by Department of Human Services under the penalty of contempt and/or removal of the minor from Ms. Weddington. A hearing was held on December 18, 2013.

That same day, the probate court ordered that, in light of plaintiffs substantial compliance with the court-structured plan, the termination of the guardianship “should be accelerated from the previously scheduled termination date of 3-24-14 to an earlier date” and that “the best interests of the minor would be served by continuing the guardianship until 1-16-14 pending completion of a modified court-structured plan which will allow for unsupervised parenting time as specified in this plan and will allow for counselor(s)/therapist(

s) of the minor to address with her the scheduled 1/16/14 permanent reunification of the minor with her mother.” The guardianship was terminated in a January 16, 2014 order. B. COMPETING COMPLAINTS FOR TEMPORARY CUSTODY Plaintiff filed her complaint for custody in the Calhoun Circuit Court on December 23, 2013, before the order terminating the guardianship was entered. Plaintiff preemptively sought temporary custody to avoid interference by defendant or Intervener with the guardianship’s imminent termination.

The complaint sought sole physical and legal custody, suspension of defendant’s parenting time, and exclusion of Inter-vener from any visits the child would have with defendant. Defendant filed a motion for temporary custody on January 8, 2014. He was concerned that termination of the guardianship would result in the child being placed with plaintiff, who had abandoned the child and who, defendant contended, was unfit. At a January 13, 2014 motion hearing, the circuit court indicated that it had discovered outstanding warrants for defendant’s arrest for malicious destruction of property and home invasion.

Defendant was immediately placed into police custody. Defendant was also ordered to submit to a drug test and tested positive for marijuana. Counsel for defendant nevertheless begged the circuit court not to uproot the child’s life by removing her from Intervener’s care, especially where “we have a mother who simply left the home where her daughter lived went for many months without having any real meaningful contact with her daughter. . . . She left the home.

She made no efforts for a considerable period of time to have regular contact with the daughter.” Plaintiffs attorney explained that plaintiff was forced to leave the child in November 2012 because of the abusive situation with defendant. Plaintiff sought substance abuse counseling and had been very diligent in trying to gain custody of the child. In fact, the only reason the probate court did not order same-day termination of the guardianship was to allow intensive services to the child to prepare her for the transition.

Counsel believed that Intervener brought defendant to court as a proxy, pointing to the fact that defendant had played no

part in the probate court proceedings. Citing its authority to place a child with a third party under the Child Custody Act (CCA), MCL 722.21 et seq., the circuit court concluded that it would not uproot the child and left the child in Intervener’s care. Intervener filed her motion for intervention and for custody on January 15, 2014, citing MCL 722.26b(l) (action for custody by a guardian). The circuit court granted the motion at a February 3, 2014 hearing.

Plaintiff moved to modify the temporary custody order on January 21, 2014, citing defendant’s continuous abusive and criminal behavior and Intervener’s failure to protect the child by essentially covering up defendant’s illegal and violent behavior. The circuit court denied the motion but modified the parenting-time

schedule to allow plaintiff mid-week contact and extended weekend visits to Monday mornings. The circuit court also appointed the child a GAL. It refused to appoint Marsh (the child’s GAL from the probate proceeding) because of Marsh’s ex parte communication with the judge in which Marsh expressed displeasure with how the case was going. Michael Clore was named GAL. C. THE CUSTODY HEARING Defendant represented himself at the custody hearing. Importantly, at no time did defendant seek custody of the child; the hearing was essentially between plaintiff and Intervener.

At the time of the hearing, there were a number of allegations regarding defendant’s assaultive behavior. The focus was on whether the child was exposed to domestic violence in Intervener’s home. Intervener and defendant denied that there was any domestic violence. In contrast, plaintiff and her witnesses reported that defendant had a history of abusing, not only his girlfriends, but Intervener.

Children’s Protective Services (CPS) investigator Megan Wilder testified that she received an allegation of substance abuse and physical neglect in Intervener’s home on January 13, 2014, which coincided with the hearing in which defendant was arrested on outstanding warrants. Wilder tried visiting the home four times and left a business card. She received a voice mail on January 21 from Intervener, telling Wilder she was not welcome in the home and giving Wilder the name of her attorney.

Wilder finally met with Intervener in February, along with Wilder’s supervisor, Chadd Hannah, and ongoing CPS caseworker Christian Giggy. Defendant was not present for the meeting. Wilder noted that Intervener’s “story changed several times” during the meeting. When confronted with two separate police reports regarding defendant’s criminality, Intervener either denied the incidents occurred or downplayed them. One incident involved the malicious destruction of property and the other involved a home invasion. CPS was concerned because the child was present for both incidents.

Wilder reviewed the police reports and had another CPS worker speak with defendant’s ex-girlfriend Alaura Haueter about “other things” in the home that concerned Wilder. Wilder ultimately concluded that Intervener failed to protect the child. A case was opened as a “category two.” Both Intervener and defendant were placed on the Central Registry and the matter was transferred to an ongoing caseworker for services, including psychological evaluations for Inter-vener, defendant, and the child.

The child was not removed from Intervener’s care because Wilder did not “see any significant risk of harm that was an immediate threat to the child.” Wilder met with the child at school and the child “seemed a little coached” and made statements “I don’t usually hear a five or six-year-old say to me.” DHHS worker Christian Giggy testified that he received the case after Wilder substantiated the allegations. Defendant was noncompliant and did not complete his psychological evaluation; Intervener and the child completed theirs.

The child was already receiving counseling with Sheri Pancost, so additional counseling was not ordered. Giggy was led to believe that defendant was out of Intervener’s home. Giggy believed the child’s home with Intervener was safe, but Intervener was always rescheduling appointments.

So while Intervener was technically compliant, Giggy testified that “[t]he amount of time and energy that I’ve put into trying to make arrangements to see her, to see the children,[] verify their well-being, has been extensive, in my opinion.” On one unannounced visit, Giggy knocked on the door and was confident that individuals were there but not responding to his knocks. Intervener told Giggy that the child was unavailable for a psychological evaluation during spring break, but Giggy contacted plaintiff who was able to make sure the evaluation was completed.

Afterward, Intervener left Giggy a voicemail and “talked about how we failed to forget that she has custody and she didn’t authorize the psychological evaluation to occur and that we would be hearing from her attorney.” Giggy observed plaintiff with the child and found her to be “very attentive.” He had no concerns about plaintiffs parenting ability. Giggy noted that when the child was with Intervener, she was more guarded in talking to Giggy, looking to Intervener for reassurance. Giggy opined that “there may be some type of coaching.” In contrast, the child opened up more when with plaintiff.

Giggy testified that the case would likely close if the child was returned to plaintiff, but would remain open if the child remained with Intervener. CPS outreach counselor Kathleen Keeder testified that her involvement in the case dated back to the probate matter. She received a referral in the probate case to work with plaintiff, Intervener, and the child to ease the child’s transition from living with Intervener to living with plaintiff. Keeder observed numerous visits between plaintiff and the child.

At the first visit, the child did not interact with plaintiff, saying things like “ ‘you’re not my mom, I want to go home.’ ” Plaintiff tried to engage the child, showing an enormous amount of patience and empathy, but the child would not talk to or even look at plaintiff. Keeder categorized plaintiffs level of skill at these visits as “good” from the very start.

They met weekly and, as the sessions continued, the child warmed up to plaintiff, becoming affectionate and engaging in activities. “[I]t seemed like a—a normal mother/child relationship the way they were playing together.” Keeder observed that the child would use the bathroom frequently during these visits and believed it was because Intervener was just outside the room where plaintiff was visiting with the child. The workers then asked Intervener to sit downstairs and observed that the child did not leave the room as frequently once she realized Intervener was not there.

Intervener also canceled visits the child was to have with plaintiff on at least two occasions. In Keeder’s estimation, Inter-vener was not interested in outreach services and refused visits Keeder planned to make to Intervener’s home; Intervener was “not cooperative at all.” Keeder wanted Intervener to help the child prepare to the transition from one home to the other, but Intervener refused. In contrast, plaintiff welcomed Keeder into the home that plaintiff shared with her grandparents. The downstairs was a completely furnished apartment.

The child would have her own room and the living arrangement was appropriate. Keeder previously recommended terminating the guardianship because plaintiff was “at a place where she can take care of [the child], and [the child] does appear to have a bond with her mom and . . . they get along great together, and so I felt that it was time for [the child] to go back home to her mom.” Keeder opined that plaintiff and the child “have a very good bond.

I think Kristen loves her child very much and I think [the child] loves her very much.” Because Intervener would not cooperate, Keeder never had a chance to see Intervener interact with the child. Ongoing CPS caseworker Candace Stack testified that she became involved in October 2013 after the court-structured plan was put into place in the probate proceeding. Plaintiff had five drug screens between October 2013 and December 2013, all negative. Plaintiff had already started counseling by her own initiative and Stack was able to obtain their reports. Stack supervised visits with the child and plaintiff.

At first, visits did not go well. The child was “standoffish” with plaintiff and would sit in the corner, saying, “ You’re not my mom, I hate you[.]’ ” Several of the visits were like that. Intervener had placed herself right outside the visiting room instead of sitting where other people were waiting. She would even sit on the floor. The child would ask to use the bathroom four or five times and Intervener would be right there. Intervener even once waited in the bathroom. Stack asked Intervener if she could go run errands or wait downstairs.

Intervener said she would go run errands if someone gave her a gas card. Stack asked Intervener two more times to please go down to the first floor. Eventually a security guard asked her to and she complied. But Intervener returned to the floor and had to be escorted by security. Intervener’s teenaged daughter, AW, was also present during the visits.

Stack noticed that visits started to go well after Intervener was removed from the situation and plaintiff “was doing a fantastic job” interacting with the child. “I could see that she was a very loving, caring mother.” Parenting time was expanded to visits at plaintiffs house on Saturdays. Intervener, who believed that expanded visitation went against the court’s visitation order, was not cooperative in bringing the child for the visits. Intervener also objected to plaintiffs grandparents, Connie and Donald Falconer, acting as designees for supervised visits.

Intervener told Stack that the child was “scared to death of Connie” because there was a high-speed chase that occurred when the child was an infant. Stack noted that the child was born in March 2008 and the alleged incident occurred in January 2009 when the child was less than a year old. The Falconers had no criminal record and were not on Central Registry. Plaintiff was fully compliant with her structured plan and Stack had recommended that the guardianship end. Because Intervener would not cooperate, Stack never had the chance to visit Intervener’s home or report who lived there.

Stack reported Intervener’s noncompliance to the probate court. Stack also observed Intervener with a black eye at a custody hearing. Sheri Pancost testified that she was the child’s therapist. Intervener had retained Pancost on July 3, 2013, prior to any court intervention, to help with the child’s adjustment to seeing plaintiff. Pancost noted that the child looked to Intervener for reassurance and asked that Intervener be part of the first couple of sessions. The child reported that she wanted to live with Intervener and that she was unsure about visiting plaintiff. She was initially angry at plaintiff.

Pan-cost continued to see the child weekly after the court became involved. On January 9, 2014, Pancost began joint sessions with the child and plaintiff at CPS’s suggestion. By that time, the child had become more comfortable talking about plaintiff. Pancost observed that plaintiff interacted with the child “just the way you would expect most parents interact. She engages with her, talks to her.” Pancost had no concerns about plaintiffs parenting ability. As the visits progressed, the child was increasingly able to show plaintiff love and affection.

The child reported that she had fun with her cousins on plaintiffs side of the family, but was still uncomfortable with her great-grandparents. She thought they were a little “creepy” because they were so much older. The child reported that she missed her half-sister, whom we will refer to as “A.” The child also expressed fear of defendant in regard to one particular incident and did not discuss him nearly as much as the other people in her life.

Pancost believed that the incident that caused the child to fear defendant was the reason that Intervener, AW, and the child had to stay in a hotel just before they moved into a new house. Pancost had the impression that even when they were living together, defendant’s interaction with the child was limited. The child reported that defendant would yell and spend a lot of time in his room. Pancost opined that the child was capable of making a healthy adjustment to living with plaintiff. Pancost believed that the child would have adjustment problems if someone was saying negative things about plaintiff.

Pancost believed that the child was not nice to plaintiff initially because the child was afraid she would have to move. The child was afraid that plaintiff would “leave [her] again,” meaning leave her with people she was not comfortable with. Pancost indicated that this fear stemmed mostly from lack of interaction with the great-grandparents, but the child also referred to a “car chase.” Pancost noted that the child “has a strong bond with [Intervener].

She feels really close to her and comfortable with her” and it would be traumatic for the child to lose all contact with Inter-vener, who was the stable force in her life. “[I]f she had visitations or something like that still, it might lessen that impact. . . .” Clinical psychologist Dr. Randall Haugen testified that he evaluated the child on April 10 and 11, 2014.

The child expressed ideas of being abandoned or lost and had a “vague sense of mother being unsafe.” Haugen testified that the child’s “presentation of the information was pretty adult-like.” She repeatedly used the word “ ‘abandonment’ ” and said it was “bad,” but could not tell Haugen what the word meant. Haugen noted that using the word abandonment, as the child did almost 40 times, was inconsistent with a child her age. Haugen believed the child was repeating some adult conversation. In terms of being conditioned, Haugen noted that the child’s

interpretation of events “seemed to be what she felt that grandma perceived also.” Haugen warned that if the negative feelings continued, it would impact the child’s function: “Children in these situations over a long period of time are really prone to develop emotionally behavioral difficulties,” and negative statements create “a lot of anxiety and apprehensiveness just about her basic sense of stability, who she is, where she’s going to be in the future.” Haugen testified that, without regard to intent, the child had been groomed or conditioned either directly or indirectly by Intervener.

The child perceived Inter-vener as “her psychological parent at this time,” who met her needs. She had a more conflicted relationship with her mother because she perceived plaintiff as having abandoned her and as someone who “has a lot of problems and is really bad.” The child did not believe that plaintiffs love for her was true love; she believed that the love she received at “home” was “real” love.

The child said, “ ‘mommy is pretending.’ ” Haugen believed that Intervener’s statements to the child that plaintiff was the biological mom but not the real mom were “undermining.” At the time of trial, plaintiff was 24 years old. Plaintiff testified that she was 17 and defendant was 15 when they began dating. Plaintiff was not getting along well with her step-mother and Intervener indicated that she would “love” for plaintiff to move in with them. At the time, plaintiff and defendant had been dating for approximately two months.

Plaintiff described herself during that time as a “dumb, lovestruck teenager.” She managed to graduate from high school in 2007, but defendant dropped out. Plaintiff became pregnant with the child in July 2007. Plaintiff, defendant, and Intervener were living in Florida at the time. They returned to Michigan in August 2007. Plaintiff and Intervener lived in Grand Rapids with one of Intervener’s friends because they had no money and needed a place to stay while Intervener found a home. AW lived in Battle Creek with a friend, and defendant lived in Hastings.

Eventually, Intervener found housing in Battle Creek and the group came back together. From December 2006 until the time of trial, Intervener had eight different residences. Plaintiff testified that, aside from the move from Florida back to Michigan, each move was the result of the failure to pay rent. The child was born in March 2008. Plaintiff stayed home with the child for three weeks but then went back to work as a waitress because the family needed money. Plaintiff testified that, at that time, Intervener helped take care of the child, but the primary childcare responsibility went to plaintiff.

Plaintiff testified that defendant moved down to Arizona in March 2010 to attend a mechanic’s school. Plaintiff went down a month later to visit. Intervener and defendant decided that plaintiff should stay in Arizona in order to help defendant recuperate from shoulder surgery and to make sure that he did not drop out of school. Although she wanted to be with the child in Michigan, plaintiff wanted to make sure defendant graduated from the program so that he could begin contributing to the family’s finances. The couple stayed in Arizona for approximately 16 months. They saw the child on visits and via Skype.

During this time, plaintiff believed she had a “good” relationship with Inter-vener. She did not feel the need to delegate parental authority because she trusted Intervener. Plaintiff acknowledged that in the time she was in Arizona, “things had kind of turned a little bit” and Intervener had primary care of the child. Defendant finished his program in July 2011 and the couple returned to Michigan that summer. Plaintiff “had no idea” about the guardianship until she left the home in November 2012. Plaintiff acknowledged that she began abusing drugs while living in Arizona.

She began with the prescription drug oxycodone. When the couple moved back to Michigan, defendant started using heroin in December 2011 and plaintiff started using it in April 2012. Plaintiff began working as a dancer and admitted that she “wasn’t parenting the way that I. . . should have ... I wasn’t in a good state to be a parent.” She and defendant slept a lot and spent a lot of time in their room. Plaintiff deferred to Intervener when it came to the child’s care. Plaintiff and defendant would fight when they ran out of money for drugs, which was nearly weekly.

Intervener would take the child into another room and tell her that defendant “didn’t mean to act like that.” A number of times Intervener had to summon the police, but once they got there, Intervener would tell them that everything was fine, so plaintiff followed suit.

In 2009, plaintiff attempted suicide one time by taking a number of aspirin: “Because Chadd had gotten into an argument with me and told me that I made everybody miserable, nobody wanted me around, [the child] didn’t need me, [the child] didn’t want me, and that I was a horrible person and that everybody hated me and . . . being treated like that on a daily basis gets to you.” Plaintiff testified that there was physical violence in the home, including pushing, kicking and hair-pulling.

On one occasion defendant was at the top of the stairs and threw an old television at plaintiff, who was at the bottom of the stairs. There was physical violence almost daily; Intervener was present for it and was also a victim. Plaintiff explained that the “littlest things” would upset defendant and “you never knew what was going to make him mad.” Plaintiff had been pushed down the stairs and had her face stomped on.

When plaintiff talked to Intervener about defendant’s behavior, Intervener’s response most of the time was to tell plaintiff that she needed to learn to “not make him so mad and it wouldn’t happen.” Plaintiff explained the “kidnapping” incident. Plaintiff tried to leave defendant in January 2009 and stayed with her grandparents for about a week. Plaintiff obtained an affidavit of parentage, thinking that she could take the child out of the Intervener’s home. Plaintiff and her grandmother, Connie Falconer, went to Intervener’s home, but the child was not there.

Plaintiff and her grandmother waited until Intervener and defendant left the home and followed them. Plaintiff wanted the child to have a family, so she went back to Intervener’s home shortly thereafter. Plaintiff left Intervener’s home once and for all in November 2012. Defendant confronted one of plaintiffs male friends by slashing one of his tires and running over his leg with a car. Plaintiff went to a friend’s house and went through drug withdrawal. When plaintiffs new boyfriend became abusive in December 2012, plaintiff went to live with her grandparents.

It was at that point that plaintiff decided to focus her efforts on finding stability. Plaintiff had recently become a certified nursing assistant at a long-term care facility. Plaintiff would ask Intervener to see the child, but Intervener made it difficult. Intervener did not allow plaintiff to see the child again until February 2013. Plaintiff applied for termination of the guardianship in April 2013. Intervener contacted plaintiff and told her that if she dropped the petition to terminate the guardianship, then plaintiff would be able to see the child at certain times, including unsupervised visits.

Plaintiff was tempted to drop the petition, but did not. Plaintiff acknowledged that the child had some negative emotions at first and initially refused to refer to plaintiff as “mom.” Plaintiff also acknowledged that the child shared a very close bond with both Intervener and AW, whom the child referred to as her sister.

Plaintiff was not opposed to the child seeing Inter-vener: “I don’t think that she shouldn’t be allowed any contact, but as long as Donna can show that she is not going to be harmful to [the child’s] emotional wellbe-ing . . . and if she will be in support—actual support of [the child] and my relationship.” Plaintiff further stated that she would be comfortable with Intervener having grandparenting time when she could “see from Donna that she’s trying and that she’s not—not trying to turn [the child] against me in any way, shape, or form.” Plaintiff testified that the child had a medical appointment that she wanted to attend.

In the waiting room, Intervener turned to plaintiff and said that she did not need to come back to the room and was not wanted there. Intervener told plaintiff to wait in the waiting room. Plaintiff also testified to an incident in which Intervener gave her misinformation about a party that the child wanted to attend. Intervener also interfered with plaintiffs attempts to meet with the child’s teacher, again telling plaintiff that she was not allowed in the school and was not wanted there.

Although plaintiff initially vehemently denied having recent contact with defendant, she later admitted to seeing him on a number of occasions since February 2013. Plaintiff allowed the child to talk to defendant on the phone and allowed her to see defendant after he hurt his head. Plaintiff admitted to staying overnight at defendant’s on occasion. They were having sexual relations throughout the course of the case. But plaintiff still denied being in a relationship with defendant: “I was stupid and I am very ashamed for letting him get into my head.

He absolutely made me believe that I needed him on my side and I was—I needed to do anything and everything possible to get [the child] out of a bad situation.” Plaintiff called Alaura Haueter as a witness. Haueter testified that defendant was her ex-boyfriend and father of her child, A. born in December 2013. Haueter began her relationship with defendant in October 2012 and moved in with defendant, Inter-vener, and AW in November or December 2012, just one month after plaintiff left the home. Haueter testified that there was domestic violence perpetrated by defendant against Haueter and Intervener.

The abuse would take place as regularly as every other week and included “[p]unching, kicking, biting, pulling hair, anything he possibly could.” Within two weeks of A coming home from the hospital, defendant gave Intervener a black eye. Intervener minimized defendant’s behavior and would ask Haueter, “ ‘What did you do this time?’ ” The child was also present for some of the outbursts. Intervener would tell the child that defendant “was sick and that it was going to be okay and that he was going to fix himself. . . .” The child would cry and run and hide.

Haueter testified that defendant kept Haueter from her family: “I never had a phone, I never had a way out. He had sold my car. He had never let me talk to my family.” Haueter tried leaving defendant on two separate occasions by having her sister come get her. Defendant convinced her to come back by promising to get counseling. Haueter took advantage of the fact that the rest of the household was at court on January 13, 2014, to make her escape. Haueter called her sister and father to come and get her.

Intervener came home while she was packing and told Haueter, “ ‘You’re not going anywhere’ ” and asked, “ ‘Why are you doing this to our family?’ ” Intervener would not move out of Haueter’s way, so Haueter ripped the shades off of the window and banged on the window to get her sister’s and father’s attention. Police officers arrived on the scene. Intervener proclaimed that she had done nothing wrong and that Haueter had not been held against her will. Haueter was present during the home-invasion incident when defendant went to confront the man whom he believed stole marijuana and lamps from him.

AW believed she knew who had taken the marijuana and lamps. Intervener, defendant, Haueter, and the child drove to where AW was. It was Intervener’s idea that the child accompany the family to confront this individual. AW was trying to convince the individual to return her brother’s items when defendant became upset and chased the individual into the house. Defendant knocked on the door and knocked on a window so hard that his hand went through it. The child was sitting on Haueter’s lap inside the family’s van. The child was upset because she thought defendant was going to die since he cut his arm.

An ambulance was called and police questioned defendant at the hospital. Haueter testified that the child was present when Intervener and defendant discussed plaintiff. They described plaintiff to the child as “[s]omeone that she never really knew.” They said that plaintiff “was a druggie and that she would never change because she has mental issues and that she doesn’t know [the child] and she doesn’t have the right to know [the child] Fifteen-year-old AW described the child as her little sister and favorite person in the world. AW did not observe any domestic violence in Intervener’s home.

If there was yelling, she, Intervener, and the child would leave. AW observed verbal fights between defendant and Haueter, but not as frequently as when defendant and plaintiff used to fight. AW saw defendant push past Haueter once when Haueter refused to leave him alone. AW never saw Intervener or defendant try and keep plaintiff from leaving the home. The day Haueter left, AW was home sick from school with the flu. AW called her mom, who arrived as Haueter was packing her things.

AW denied that Intervener did anything to keep Haueter from leaving, though she acknowledged that Haueter pulled the shade off of the window. AW denied that the police were involved. AW and Intervener now lived in a different house from defendant. AW denied that the move was prompted by anything other than wanting more space and because defendant was older. She denied that the child was afraid of defendant. AW never heard any negative comments about plaintiff.

In the middle of the proceedings, plaintiff filed a motion to modify temporary custody after it was revealed that the child placed calls to plaintiff and others in an attempt to recant what she previously told her therapist—that she had witnessed defendant’s domestic abuse. AW was there when the child called plaintiff after being confronted about statements she made to Pancost. Intervener explained that defendant had been at the house and returned a few minutes later after speaking with plaintiff on the phone.

Apparently plaintiff let defendant know that the child had revealed that there was domestic abuse in the home to her therapist. Defendant returned to the home to see if it was true. Defendant was upset when he questioned the child about it. Intervener asked AW to take the child to her room. Intervener told defendant that the child did not reveal any abuse. Instead, plaintiff “was continuing to push his buttons, and that he needed to calm down and to think about the situation, and that was about it, and then he left.” Intervener did not realize that the child had called plaintiff.

The circuit court later ordered that defendant have no contact with the child pending resolution of the case. It declined plaintiffs motion to change temporary custody, even as the GAL noted: “This child is being told things, and this—this case is being discussed with her. She is being put in the middle of this. She is being pitted against her mother by calling her. This is harming this child.” On June 6, 2014, the matter was adjourned because the child’s half-sister, A. had become ill and was in the hospital.

The circuit court ordered that plaintiffs summer parenting time be accelerated and ordered that plaintiff could pick up the child from school at the end of the day to begin parenting time or, alternatively, if the child was with her sibling at the hospital, plaintiff was to begin summer parenting time at noon the next day. Intervener picked up the child from school that day. Staff informed her that plaintiff had called and said she was bringing paperwork that would allow her to take the child home.

Intervener left before plaintiff arrived, explaining that “I didn’t have time to worry about it” in light of the fact that she was on her way to the hospital in Grand Rapids to see A. Because the child was not allowed to have contact with defendant, Inter-vener dropped the child off at her friend’s home. Plaintiff went to the hospital, looking for the child but Intervener told plaintiff that the child was not with her and that she had no way of contacting the child. Intervener did not know the address for her friend, whom she had known for 15 years.

Intervener did not provide the phone number because “I wasn’t asked for it.” Intervener denied knowing about the court order, but admitted, “She [plaintiff] tried to hand me a piece of paper when she first got there, but I was already walking out.” Intervener admitted she had spoken with her own attorney an hour before seeing plaintiff at the hospital.

Intervener testified that the child calls her “Mimi” and never referred to her as “grandma.” Intervener denied doing anything to negatively impact the relationship between plaintiff and the child, stating, “The mother has done that all by herself.” Intervener testified to the number of times plaintiff was absent from the child’s life, including when she was in the hospital for a week when the child was six months old after attempting suicide. Plaintiff left for Arizona on two separate occasions.

Intervener had flown plaintiff and defendant home for Christmas and Intervener expected plaintiff would stay, but she decided to go back with defendant. While Intervener believed plaintiff abandoned the child, she did not believe defendant had abandoned the child. Intervener denied ever trying to keep plaintiff or Haueter from leaving her home. In fact, she “wanted them out, both of the girls” after she “saw what they had become and what they were doing.” Intervener claimed that she was actually helping Haueter carry her things out to the car, but also acknowledged that the police were there.

Intervener denied that there was any domestic violence between defendant and plaintiff. “There was yelling, absolutely, throughout the course of their relationship. But I’m not sure of a relationship that doesn’t have yelling. But I never saw any physical violence.” Intervener denied there was ever any domestic violence against her. “In the past, when my son was 14 or 15, he got out of hand with me and I called the police and had him arrested. Has he raised his voice at me? Yes, he has. Do I put up with it? No.” Intervener always makes sure AW and the child are away from the house when defendant is upset.

Intervener attributed her black eye in January 2013 to a fall on the ice. She denied that they had to move because of an incident at AW’s school with defendant. She explained that defendant arrived at the school upset, though she could not remember why—“[t]hat’s how trivial it was.” Inter-vener did not see any reason why the child would be afraid of defendant.

Regarding the home-invasion incident, Intervener testified that defendant “went to keep someone for the police, keep someone from leaving the state until the police got there when someone broke into the shed.” Intervener was the one that called the police on their way there. “It was not supposed to be any physical altercation, whatsoever.” The child was in the car playing for the hour it took police to arrive on the scene.

She did not witness defendant getting hurt. “There were no safety issues at all.” “I didn’t put [the child] in that situation. [The child] was just in the vehicle.” Intervener denied knowing anything about the road-rage incident or speaking to officers. Defendant told her that someone had cut him off and that his shirt got caught on the windshield wiper. Regarding the high-speed chase, Intervener testified that plaintiff “ran off’ with someone and came back a week later to take the child. The child was not home.

Plaintiff and Connie Falconer waited until Intervener and defendant left the house and then “began to chase us.” The police ordered plaintiff to stop and leave them alone. Plaintiff moved back in with Intervener a week later. Intervener admitted to sitting in the hallway and the bathroom, but believed prior testimony was “embellished” and that “Ms. Stack was very combative with me the entire time . . . .” Intervener only lived a few minutes from where the two-hour visits were taking place, but decided to stay in order to read the Bible. She did not think she should have to spend money on gas to go back and forth.

Intervener testified that she was cooperative with CPS and it was the CPS workers who refused to return her phone calls. She denied changing any appointments. Intervener still remained uncertain as to what CPS’s concerns were.

Intervener did not believe the child needed protection from defendant. “I don’t agree that [defendant] would ever do anything to hurt his daughter, absolutely not.” Intervener stated, “I never failed to protect [the child] from anybody.” She added, “That’s what I’m trying to do now.” Intervener had followed the order that prohibited defendant from having contact with the child though she did not see the child at risk with defendant. Prior to that, the child saw defendant at least three or four times a week.

Intervener believed defendant was fit to raise the child, but then clarified that there was a difference between “fit” and “ready” and defendant was not ready. This was in contrast to a letter she filed in the probate court, begging the court for help in finding out how defendant could apply for custody of the child without an attorney. Intervener testified that plaintiff was not ready to take care of the child but did not deny there was the potential for plaintiff to provide care and custody in the future.

She believed plaintiff still needed to learn “how to tell the truth, learning right from wrong, learning not how to be manipulated by other people.” Intervener added that plaintiff continued to use drugs. Although Intervener was confronted that there was no proof of plaintiffs alleged continued drug use, Intervener testified, “No, but I—somebody will—it will get testified to. Some person who has proof will testify to it before the day is over, sir.” Intervener denied influencing the child. “[The child] knows these proceedings are going on. As everybody has told you, she is an extremely intelligent child.

Have I dwelled on or told her her mother was a bad mother, absolutely not.” All that Intervener told the child was that plaintiff believed she was capable of taking care of the child and “wanted [the child] to come live with her . . . .” Intervener denied interfering with plaintiffs attempt to have a relationship with the child. Intervener talked to the child about the importance of having her parents in her life.

The child reported that plaintiff would yell at her. “And you know, we talk about different kinds of parenting skills and—and, you know, that possibly—hopefully Kristen will be getting more help with her parenting skills, you know.

And that as long as she felt safe, that you know, people have different types of parentings skills.” Inter-vener testified that claims that she was attempting to sabotage the relationship was “just not the truth.” “I have been there since day one for all of them—all of them; these two included, and would love nothing better than to have a peaceful relationship with all of them.” The child’s GAL questioned Intervener about any efforts she might have made to facilitate the child’s relationship with plaintiff: Q. How have you fostered a relationship between Ms. Falconer and [the child]?

A. [The child] and I have had talks about both of her parents getting sober and that they are continuing to get the help they need. Q. That’s how you foster that relationship? A. By talking to her? Yes, we talked about it all—yes. Q. I-I... A. And that she’s making an effort. . . Q. You . .. A. ... to try to be a better parent. Q. Okay. A. And maybe one day she will be. When confronted by the GAL’s questioning regarding why Intervener would have left the child in plaintiffs care when Intervener knew she was using drugs, Intervener lashed out: “I shouldn’t have left her with her mother?

Yes, that was a bad decision to let her mother try to be a mother. And I’m trying not to make that decision again and I’m hoping the Court won’t.” And during another exchange with the GAL about her willingness to cooperate with plaintiff, Intervener stated as follows: Q. You’re not going to cooperate with Ms. Falconer about anything are you? A. What are you talking about? Q. Her simply trying to hand you a piece of paper, you’re not going to cooperate with that, are you? A. How about me getting my Father’s Day visit, is she going to cooperate with me? Q. And—and . . . A.

Yes, absolutely, I would love to cooperate with Ms. Falconer if she could quit telling lies long enough to cooperate. Intervener denied ever being evicted since caring for the child, even in the face of documents to the contrary. She testified that she never saw the documents or that the claims had been “taken care of.” Intervener also downplayed an arrest for retail fraud at Meijer regarding a prescription.

She denied stating on Facebook that plaintiff “ ‘has some serious mental issues’ ” and was “ ‘trying to legally remove [the child] from my home ....’” Although Intervener testified that she had no objection to having her psychological evaluation released, it never was. Defendant testified that he and plaintiff were “off and on” during the proceedings and had spent nights together. They stopped speaking in June 2014. Defendant last used heroin in April with plaintiff; they had used heroin together at least six times in 2014.

Defendant admitted that his relationship with plaintiff was a “cat and mouse game.” He knew she had used heroin and could use that against her, while she was in a position to cause trouble with Haueter, with whom he was seeking to reconcile. Defendant’s last contact with plaintiff was “when she decided that when my five-month-old was just waking up out of surgery that she needed to come up to her room to cause a commotion over a court paper.” Defendant denied any domestic violence with plaintiff: “[W]e’ve had our horrible fights, just like I would assume any other couple has had.

But I’ve never sat there and just, I mean, Mohammad Ali went crazy on her or anything like that.” Defendant denied seeing Intervener coach the child. Defendant was combative and hostile during cross. Defendant denied receiving any of the pleadings in the guardianship proceeding. He supported his mother in her resistance to terminating the guardianship and did not see a reason to be involved.

Even now, he did not fight for custody because he was “not fit at this time” and wanted to allow “someone that I have seen raise [the child] her entire life continue to raise her until I am ready or Kristen is ready.” He admitted to a 2009 conviction for interfering with a communication with Intervener; he claimed that the phone just died. Defendant was charged with assault and malicious destruction of property for a November 18, 2012 incident with plaintiffs friend, but that was “dropped” when no one appeared at court.

Defendant constantly indicated that he did not remember things, adding “I’m sorry, I have a lot going on right now if you haven’t noticed.” Defendant claimed he did not remember the road-rage incident. He had also “blocked out” the home-invasion incident. During closing arguments, plaintiffs attorney noted that Intervener was attempting to sabotage plaintiffs relationship with the child. Counsel added that Inter-vener “does not have an independent right to grand-parenting time. . . . [T]here’s a . . . claim in which she could file to seek that, but it’s not this.

This is a custody case.” The GAL likewise noted, “I would recommend that any parenting time with the grandmother be at the mother’s discretion [.]” The GAL further noted that the circuit court should not even bother with an in camera interview of the child, in light of the grooming. The circuit court nevertheless interviewed the child. D. THE CIRCUIT COURT’S DECISION The circuit court first commented on the witnesses’ testimony. It found that plaintiff was not entirely forthcoming in that plaintiff initially denied seeing defendant during the proceedings.

The circuit court found that Intervener lied about some things, but nevertheless accepted some of Intervener’s testimony as credible.

Regarding defendant, the circuit court noted: “listening to his testimony, or lack thereof, as well as considering his demeanor . . ., the Court totally discounts and rejects his entire testimony .... [B]ased upon the testimony and his actions, the Court believes that in fact there just was no truthfulness in this testimony and I completely reject it.” The circuit court admonished plaintiff that further contact with defendant “could prove to be disastrous to you.” The circuit court cited MCL 722.25(1), Heltzel v Heltzel, 248 Mich App 1; 638 NW2d 123 (2001), and Hunter v Hunter, 484 Mich 247; 771 NW2d 694 (2009), for the notion that there is a presumption that placement with the natural parent is in the child’s best interests absent clear and convincing evidence otherwise.

It also cited Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000), for the notion that a natural parent has a fundamental liberty interest in caring for his or her child. The circuit court concluded, therefore, that Intervener had the burden of showing by clear and convincing evidence that the child should be placed with Intervener. It then proceeded to analyze the best-interest factors in MCL 722.23 of the CCA. The circuit court found the parties on equal footing as it related to Factor (a)—the love, affection, and emotional ties the child had with the parties.

As for Factor (b)—the capacity and disposition of the parties to give the child love, affection, and guidance, the circuit court noted that the factor favored plaintiff: As it relates to guidance, the—Ms. Weddington had allowed her son and the Plaintiff in her home to engage in sexual relations during the time that they were minors resulting in the birth of this child. She’s allowed them in both'—-in her house as well when they were both engaging in drug use, when she knew that, when she had in essence two minor children in the household. Additionally, Ms.

Weddington took [the child] [during the home-invasion incident]. And basically, when she was questioned extensively... she showed a total lack of judgment as to how this could have been a dangerous situation for [the child]. As a result—and for other reasons as well—the Court will find that this factor.. . does favor the Plaintiff Mother.

As to Factor (c)—the capacity and disposition of the parties to provide the child with food, clothing, medical and other remedial care—the circuit court concluded that Intervener’s insistence on continuing to help defendant with his rent affected her ability to provide for the child and, as such, there was a “slight” advantage to plaintiff. As for Factor (d)—the length of time the child has lived in a stable satisfactory environment and the desirability of maintaining that environment—the circuit court concluded that Intervener’s many moves and the lack of safety caused it to “slightly” favor plaintiff.

As for Factor (e)—the permanency as a family unit of the existing and proposed homes—the circuit court found the factor equal. As for Factor (f)—the moral fitness of the parties— the circuit court noted that “neither party has an exemplary history as it relates to this factor.” It noted, however, that Intervener’s behavior of pandering to or condoning defendant’s behavior caused it to “slightly” favor plaintiff. As for Factor (g)—the mental and physical health of the parties—the circuit court found that the factor “slightly” favored plaintiff.

As for Factor (h)—the home, school, and community record of the child—the circuit court found that the factor favored plaintiff. As for Factor (i)—reasonable preference of the child—the circuit court noted that it spoke to the child, who was clearly impacted by the proceedings. “And sometimes kids of that age come in and are just simply maybe somewhat apprehensive of the—of the Judge, or not knowing what’s going to happen, but you could see that [the child] was impacted by these proceedings.

But she was very pleasant, very thoughtful, and she did express a preference, and the Court is considering that preference in this particular matter.” As for Factor (j)—willingness and ability to facilitate and encourage a close and continuing relationship— the circuit court had a lot to say: In this particular matter, the testimony was that Ms. Weddington, when the Plaintiff went to the doctor’s office, that Ms. Weddington told her to wait in the lobby. Ms. Weddington told the Plaintiff that—when she was at school that she was not welcome at school.

She told her she wouldn’t be able to—she wouldn’t be able to get a report card without a court order, and she—Ms. Wedding-ton objected to having the maternal grandparents supervise any parenting time. And the Court, likewise, believes as it relates to this issue of the car chase, there was this car chase in which she basically characterizes it [as] a car chase, the Court doesn’t—believes that they were followed, but the Court doesn’t believe that it was a car chase in this particular matter. And I think that the way that Ms.

Weddington has approached a number of things in this matter have in fact impacted the way that [the child] views her mother in this particular case. Ms. Haueter testified that Ms. Weddington and the Defendant discussed the Plaintiff in front of [the child] and the—basically the only reason for such conduct would be to alienate the child from the parent. Ms. Weddington is likewise—has a—a Facebook post that she admitted to, stating that [the child] was living with a stranger and at a stranger’s home and feeling so sad.

In this particular case, at some point, the child would be able to view that and see that, and that is not conducive to establishing a parent/child relationship. Additionally, when Ms. Weddington was questioned by [the GAL] back on June 18th as to whether she credited Plaintiff with any improvement, Ms. Weddington would not acknowledge that she had improved her life in any way. She wouldn’t even acknowledge the improved housing, the stable job, and she wouldn’t acknowledge that the Plaintiff had in fact gained control of her drug issues; notwithstanding the fact that she had had a number [of] negative drug tests.

These statements and conduct belie any ability on behalf of Ms. Weddington to establish and continue a parent/child relationship between [the child] and the Plaintiff mother. So as a result, the Court will find that that factor does favor the Plaintiff mother. As for Factor (h)—domestic violence—the circuit court noted that there was no evidence that plaintiff had been involved in any domestic violence whereas “there was voluminous testimony” that defendant had. The circuit court concluded that the factor favored plaintiff: I would state that Ms.

Weddington did not commit any domestic violence, but she had allowed that to continue in the home, and notwithstanding the fact that she would take the child and have the child removed by her own statements and by the statements of [AW], the testimony of Ms. Haueter was that [the child] would cry and hide during these bouts when they occurred in the home. And finally, as for Factor (i)—any other factors the court deems relevant—the circuit court noted: In this case, when grandmother was asked about Mr.

Stamps, she acknowledged that he gets angry, he has a temper, that there’s a history of bad decisions concern— and I state based on what I’ve seen, there’s a history of bad decisions concerning her son—that she’s simply blinded to his faults, his bad behavior, and his conduct. And the Court is also concerned about Ms. Wedding-ton’s total and complete lack of objectivity when it comes to her son in this matter .... Intervener having failed to meet her burden by clear and convincing evidence, the circuit court ruled that plaintiff would have custody of the child. The circuit court did not end its inquiry, however.

It indicated that “there are other issues the Court has to decide. Those other issues concern grandparent visitation.” It addressed the factors in MCL 722.27b(6)(

a) through (j). The circuit court concluded that Factor (a)—the love, affection, and other emotional ties existing between the grandparent and the child—favored grandparent visitation. The circuit court also concluded that Factor (b)—the prior relationship between the grandparent and the child—also favored visitation. The circuit court found that Factors (

c) and (d)—the grandparent’s moral, physical, and mental fitness— weighed against visitation. The circuit court considered the child’s reasonable preferences under Factor (e).

As for Factor (f)—the effect on the child of hostility between the grandparent and the parent—the circuit court noted: It does appear that the parties have been able to in fact get along somewhat as it relates to the exchanges, et cetera, and as a result the Court will find that in fact, hopefully, the parties can get past any animosity they have when this case is concluded, but the Court will find that that factor does favor grandparenting time.

As for Factor (g)—willingness of grandparent to encourage a relationship with the parent—the circuit court concluded that, for the same reasons set forth under the similar custody factor, Factor (

g) did not favor visitation. As for Factor (h)—allegations of abuse—the circuit court did not give the factor weight even though Intervener had been substantiated for neglect.

As for whether plaintiffs decision to deny grandpar-enting time was motivated by something other than the child’s best interests under Factor (i), the circuit court concluded that it did not feel that plaintiff acted out of ill will “but the Court does find that in fact it would adversely affect the minor child if this contact was cut off.” Finally, the circuit court gave “substantial []” consideration to Factor (j), which was “any other factor relevant to the physical and psychological well-being of the child.” The circuit court noted that the child had come to depend upon Intervener.

The circuit court concluded that “the grandmother has met the burden by a preponderance of the evidence that in fact it would be a—the child would be placed at substantial risk of harm to the child’s mental, physical, and emotional health if in fact that contact is cut off.” On August 11, 2014, the circuit court entered the final order for child custody. The order granted plaintiff sole physical and legal custody of the child. Defendant’s parenting time remained suspended and Inter-vener was granted standard parenting time for a noncustodial parent. The circuit court denied plaintiffs motion for reconsideration.

Plaintiff now appeals as of right. II. ANALYSIS A. STANDARD OF REVIEW As recently set forth by this Court: Orders concerning grandparenting time must be affirmed on appeal unless the trial court’s findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. Issues of statutory

interpretation are questions of law. Questions of law are reviewed for clear legal error. Clear legal error occurs when the trial court errs in its choice,

interpretation, or application of the existing law. [Varran v Granneman (On Remand), 312 Mich App 591, 617; 880 NW2d 242 (quotation marks, citations, and brackets omitted).] B. PROCEDURAL ERROR This case is a custody dispute between plaintiff, who is the child’s biological mother, and Intervener, who is the child’s paternal grandmother. Intervener had provided the child with an established custodial environment for a number of years before the custody hearing.

Generally, a “court shall not modify or amend its previous judgments or orders or 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(l)(c). However, a natural parent has a fundamental liberty interest in the care and custody of her child. Hunter, 484 Mich at 257. To that end, MCL 722.25(1) provides: If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control.

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 established by clear and convincing evidence. Our Supreme Court has held that the parental presumption in MCL 722.25(1) controls over the conflicting presumption favoring an established custodial environment in MCL 722.27(l)(c). Hunter, 484 Mich 263-264; see also Heltzel, 248 Mich App at 26-28.

This is because “the parental presumption has some constitutional provenance, whereas the custodial environment presumption has none.” Hunter, 484 Mich 272. The Court explained: The importance of the family and the essential, basic, and precious right of parents to raise their children are well established in United States Supreme Court jurisprudence. This right is not easily relinquished.

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.

Therefore, to satisfy constitutional due process standards, the state must provide the parents with fundamentally fair procedures. [Id. at 257 (quotation marks and citations omitted).] The Court further explained: Troxel explicitly requires courts to give some deference to a parent’s decision to pursue custody because it is inherently central to the parent’s control over his or her child. By contrast, unlike the parental presumption in MCL 722.25(1), no constitutional protections for third persons underlie the established custodial environment presumption in MCL 722.27(1)(c).

This Court has held that no constitutional or statutory basis exists for third parties to have standing to seek child custody solely because they have an established custodial relationship with the child. [Id. at 263.] Absent a statutory requirement to the contrary, the parental presumption does not even require a threshold determination of parental fitness. Id. at 268. That is because “a natural parent’s fitness is an intrinsic component of a trial court’s evaluation of the best interest factors in MCL 722.23.” Id. at 270.

The best-interest factors that require a trial court to consider a parent’s “moral fitness” and “mental and physical health” “reflect the legislative determination that concerns about parental fitness are of paramount importance in custody determinations.” Id. at 270-271. Therefore, in a custody dispute between a natural parent and a third party, it is presumed that the child’s best interests are served by being placed with the natural parent unless the third party can demonstrate otherwise by clear and convincing evidence.

A custody proceeding necessarily involves an inquiry as to the fitness of the competing parties, utilizing the best-interest standards set forth in MCL 722.23. An action for grandparenting time, unlike custody, is simply a different cause of action altogether. Here, in granting plaintiff full physical and legal custody, the circuit court methodically considered the child’s best interests under MCL 722.23 and concluded that Inter-vener failed to meet her burden of showing by clear and convincing evidence that the child’s best interests would have been served by placing the child in Inter-vener’s care.

Necessarily included in that decision was the circuit court’s tacit finding that plaintiff was a fit parent. Whereas a custody case involves an inquiry as to parental fitness, a proceeding under the grandparent visitation statute presumes parental fitness. Absent a challenge to the circuit court’s custody decision, it is presumed that plaintiff is a fit parent and “there is a presumption that fit parents act in the best interests of their children.” Troxel, 530 US at 68 (opinion by O’Connor, J.).

The United States Supreme Court has declared that “the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Id. at 70.

Troxel struck as unconstitutional a Washington statute that permitted any person to at any time to seek visits with a child if such visits were in the child’s best interests because a fit parent’s decision was accorded no deference under the statute. Id. at 67; id. at 75-77 (Souter, J., concurring in judgment).

Similarly, in DeRose v DeRose, 469 Mich 320, 333-334; 666 NW2d 636 (2003), our Michigan Supreme Court struck as infirm the prior version of MCL 722.27b because “[t]here is no indication that the statute requires deference of any sort be paid by a trial court to the decisions fit parents make for their children” and “fails to require that a trial court accord deference to the decisions of fit parents regarding grandparent visitation . . . .” Our current grandparenting-time statute now affords such deference.

A child’s grandparent may seek a grandparenting-time order where, as here, “[i]n the year preceding the commencement of an action under [MCL 722.27b(3)] for grandparenting time, the grandparent provided an established custodial environment for the child as described in [MCL 722.27], whether or not the grandparent had custody under a court order.” MCL 722.27b(1)(f). The grandparenting-time statute also sets forth the procedure for bringing the issue of grandparenting time before the court.

Where, as here, the “circuit court has continuing jurisdiction over the child” because of the custody proceeding, “the child’s grandparent shall seek a grandparenting time order by filing a motion with the circuit court in the county where the court has continuing jurisdiction.” MCL 722.27b(3)(a) (emphasis added). Additionally, the motion “shall be accompanied by an affidavit setting forth facts supporting the requested order.” In turn, the party having legal custody may file an opposing affidavit. MCL 722.27b(4)(a). “A hearing shall be held by the court on its own motion or if a party requests a hearing.

At the hearing, parties submitting affidavits shall be allowed an opportunity to be heard.” Id. However, because “[a] parent has a fundamental right, one that is protected by the Due Process Clause of the Fourteenth Amendment, to make decisions concerning the care, custody, and control of his or her child. It cannot be disputed that a grandparenting-time order interferes with a parent’s fundamental right to make decisions concerning the care, custody, and control of a child.” Varran, 312 Mich App at 605 (citations omitted).

Therefore, our Legislature has provided: In order to give deference to the decisions of fit parents, it is presumed in a proceeding under this subsection that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health. To rebut the presumption created in this subdivision, a grandparent filing a complaint or motion under this

section must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health.

If the grandparent does not overcome the presumption, the court shall dismiss the complaint or deny the motion. [MCL 722.27b(4)(b)J Our Court has recently upheld a constitutional challenge to this statute, holding that the statute “does not allow a trial court to grant grandparenting time simply because it disagrees with the parent’s decision” and “thus abides by the Troxel deference requirement.” Varran, 312 Mich App at 612.

The Court further held that, because due process concerns are not at their highest in cases involving requests for grandparenting time, “the requirement that grandparents, in order to rebut the presumption given to a fit parent’s decision, prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child is sufficient to protect the fundamental rights of parents.” Id. at 615. Here, the circuit court conflated what should have been two separate and distinct actions—the custody determination and the grandparenting-time determination.

It first concluded that plaintiff was entitled to custody of the child based on Intervener’s failure to show by clear and convincing evidence that the child’s best interests were not served by placing the child with plaintiff. However, the circuit court sua sponte continued that “there are other issues the Court has to decide.

Those other issues concern grandparent visitation.” It then plowed ahead and addressed the factors in MCL 722.27b(6), which provides: If the court finds that a grandparent has met the standard for rebutting the presumption described in [MCL 722.27b(4)], the court shall consider whether it is in the best interests of the child to enter an order for grandpar-enting time.

If the court finds by a preponderance of the evidence that it is in the best interests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the child by the grandparent by general or specific terms and conditions. In determining the best interests of the child under this subsection, the court shall consider all of the following: (

a) The love, affection, and other emotional ties existing between the grandparent and the child. (

b) The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent. (

c) The grandparent’s moral fitness. (

d) The grandparent’s mental and physical health. (

e) The child’s reasonable preference, if the court considers the child to be of sufficient age to express a preference. (

f) The effect on the child of hostility between the grandparent and the parent of the child. (

g) The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child. (

h) Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent. (

i) Whether the parent’s decision to deny, or lack of an offer of, grandparenting time is related to the child’s well-being or is for some other unrelated reason. (

j) Any other factor relevant to the physical and psychological well-being of the child. [Emphasis added.] While the circuit court carefully considered the best-interest factors under the grandparenting-visitation statute, MCL 722.27b(6), separately from its previous best-interests determination on custody, MCL 722.23, it nevertheless committed error by even considering the issue of grandparent visitation. Importantly, plaintiff received custody of the child just moments before the circuit court’s decision on grandparenting time and, therefore, plaintiff had not denied Intervener grandparenting time.

See MCL 722.27b(4). The circuit court, in rendering an opinion on grandparent visitation absent a request to do so, effectively jumped the gun and presumed that plaintiff would unreasonably deny Intervener grandparenting time. But plaintiff testified that she was amenable to visitation as long as Intervener did nothing to sabotage plaintiffs relationship with the child.

Additionally, “[b]ecause a grandparenting-time order overrides a parent’s legal decision to deny grand-parenting time, a grandparenting-time order interferes with a parent’s fundamental right to make decisions concerning the care, custody, and control of his or her child.” Varran, 312 Mich App at 605-606. As previously stated, the primary issue in a custody proceeding is markedly different from the primary issue in a grandparent visitation proceeding. In the former, the trial court must determine the relative fitness of the parties and the child’s best interests.

In the latter, the parent’s fitness is presumed and it is incumbent on the grandparent to show by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. The circuit court, by granting Intervener grandparenting time absent a request to do so, deprived plaintiff of the opportunity to argue

[…]