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### STATE OF MICHIGAN

COURT OF APPEALS

JOSEPH RICHARD DEMSKI,

Plaintiff-Appellee, FOR PUBLICATION March 5, 2015

v No. 322193 Berrien Circuit Court CASSIDIE ANN PETLICK, f/k/a CASSIDIE ANN POINTER, and JEFFREY PETLICK, LC No. 12-003323-DP

Defendant-Appellants.

Before: B OONSTRA , P.J., and D ONOFRIO and G LEICHER , JJ.

G LEICHER , J. ( dissenting ).

During the first two-and-a-half years of her life, MP lived so lely with her married parents, Cassidie and Jeffrey Petlick. Jeffrey’s awareness tha t he was not MP’s biological father did nothing to dim his de votion to his daughter.

Joseph Demski, MP’s biologica l father, sought to establish a r ole for himself in MP’s life. The trial court considered Demsk i’s paternity claim under the R evocation 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 f iliation in Demski’s favor, thereby disestablishing Jeffrey’s paternity and extinguishing h is parental rights, despite that Jeffrey continues to live with his wife and MP. Six months lat er, without holding an additional hearing, the trial court awarde d Demski joint legal custody of MP and parenting time.

The majority detects no errors i n 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 i nterests, and that this showing was not made. Moreover, the trial court’s ex parte considerati on 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 marr ied 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 file d his revocation of paternity-2- 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 ev idence 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 th at a child is born out of wedlock if the court finds evidence that the order would not be in the bes t 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 a ccount a child’s best interests is a court vested with authority to “[ m]ake a determination of pater nity 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 sp ecifies 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. Howev er, the RPA endorses that genetics alone do not a father make. “The result s 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 autho rized a trial court to “ refuse to enter an order setting aside a paternity determination or deter mining 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 cl ear 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 722.14 45.

2 MCL 722.1443(4) further dictates that “[t]he court may conside r the following factors” when determining whether a chil d is born out of wedlock:

(a) Whether the presumed father is estopped from denying parent age because of his conduct.

(b) The length of time the presumed father was on notice that h e might not be the child’s father.

(c) The facts surrounding the pre sumed father’s discovery that he might not be the child’s father.

(d) The nature of the relationship between the child and the pr esumed or alleged father.

(e) The age of the child.

(f) The harm that may result to the child.-3- applicable to the court’s best-i nterest determination under the RPA. The majority assumes that the preponderance standard applies. In my view, the appropriat e 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 ba sed on “the presumption in favor of maintaining the child’s established custodial environment,” Dem ski was required to present “clear and convincing evidence” t hat 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 d etermination regarding the best interests of the child under MCL 722.1443(4).” The record is n ot nearly so straightforward. And in this case, Demski’s evidence concerning MP’s best intere sts fell well short of even an evidentiary preponderance.

Indisputably, the trial court used a clear and convincing stan dard when ruling that Demski had demonstrated “that he is the child’s [biological] fa ther.” The Legislature plainly prescribed that “clear and convi ncing” evidence must control a court’s paternity determination in MCL 722.1445. The DNA evidence supporting Demski’s parentage w ent unchallenged. Hence, the trial court’s distinct artic ulation that clear and convinci ng evidence dictated its paternity finding is unsurprising. Whether the trial court employed a cl ear and convincing standard when it evaluated the child’s best int erests under the RPA represent s an entirely diffe rent question.

The trial court prefaced its discussion of the statutory facto rs involving a child’s “best interests” as follows:

The plaintiff has timely filed a complaint to determine parent age, 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 orde r determining that a child is born out of wedlock if the Court finds evidence that t he 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 factor s, 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 f actors. Rather, the court appeared to separate its “clear and c onvincing” 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 c ourt determines appropriate to c onsider.

The parties agreed that factor s (a), (b), and (c) were not appl icable to this case.-4- 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 clear ly that of the expert witness . In light of the direction and the new direction and law for the State of Michig an, the Court is going to grant the petition of the plaintiff.

With that, an order, Mr. Banyon, consistent with [the] directi ve of MCL 722.1445 in terms of the termination of paternity; again, by cl ear and convincing evidence that your client is ind eed 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 t he trial court determined that clear and convincing evidence, rather t han an evidentiary preponderan ce, supported its best-interest finding under the RPA.

Regardless of which standard o f proof applies, I agree with th e 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. Duri ng his case-in-chief, Demski pre sented virtually no evidence addressing MP’s best interests. His testimony focused on himse lf and the historical events surrounding MP’s conception and bi rth, and his justifications f or having had no contact with the child for most of her life. His girlfriend’s testimony centere d on the couple’s pit bull and the reasons that it would pose no danger to MP. She also assured t he court that the couple had discontinued using marijuana. Demski’s mother testified that h e 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 nothave supported a bestinterest finding in Demski’s favor. Demski presented precious little evidence concerning MP’s needs or interests. Only a miniscule quantum of testimony rela ted 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 patern ity would advance the child’s b est interests.

The Petlicks’ evidence more directly addressed the RPA’s best- interest factors, primarily via the testimony of psychotherapist Robin Zollar. No discussi on ensued during the trial, however, regarding the standard of proof applicable to the tria l court’s evaluation of Zollar’s testimony, or that of any other wi tnesses, regarding MP’s best interests. To the extent the majority endorses a prepondera nce standard, I disagree.

Given that RPA proceedings implicate weighty interests for bot h 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 proo f, 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 util ized by a court “reflects not only the weight of the private and public interests affected, but al so a societal judgment about how the risk of error should be distri buted between the litigants.” Santosky v Kramer , 455 US 745, 755; 102 S Ct 1388; 71 L Ed 2d 599 (19 82). “The function of a stand ard of proof, as that concept is-5- embodied in the Due Process Clau se and in the realm of factfind ing, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he shoul d have in the correctness of factual conclusions for a parti cular type of adjudication.’ ” Addington v Texas , 441 US 418, 423; 99 S Ct 1804; 60 L Ed 2d 323 (1979) (citation omitted). “[W]hi le private parties may be interested intensely in a civil dispute over money damages, app lication of a ‘fair preponderance of the evidence’ standard indicates both society’s ‘minimal con cern with the outcome,’ and a conclusion that the litigants should ‘share the risk of error i n 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 pos ition is an evidentiary preponderance. H owever, the United States Supreme Court has “mandated an intermedi ate standard of proof—‘clear an d convincing evidence’—when the individual interests at stake in a state proceeding are bot h ‘particularly important’ and ‘more substantial than mere loss of money.’ ” Id . at 756, quoting Addington , 441 US at 424. The interests at stake here implicat e the very essence of being a p arent: the right to make decisions regarding a child’s care, contro l, health, education and associ ation, 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 vie w, the parties’ competing rights and interests qualify as “particularlyimportant” and “more substan tial than mere loss of money,” necessitating application of a s tandard 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 in volving the termination of paren tal rights, the preponderance of the evidence standard applies to a court’s bes t-interest determination. In Re Moss , 301 Mich App 76, 83; 836 NW2d 182 (2013). In so holding, thi s Court stressed that the clear and convincing standard app lies to the first stage of ter mination proceedings, in which a court determines whether the moving party has demonstrated a st atutory 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 oferrorreducing 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 termina tion has been made, however, “t he interests of the child and the parent no longer coincide, and the need for a heightened standa rd of proof is not present in the best-interest stage.” Id. at 88.

The procedure set forth in the RPA meaningfully differs from t hat of a termination case. Under the RPA, a trial court must consider a child’s best inter ests when considering whether to declare a child born out of wedlock. MCL 722.1443(4). This in itial 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 u nder the RPA maintains a liberty interest in the custody of a ch ild—and the child in the custodyof her parent—until clear and convincing grounds justify severing that relationship. And the RPA clearly contemplates that a-6- judge may find that despite clear and convincing DNA evidence o f paternity, a child’s best interests would be jeopardize d by the interrup tion of her stabl e 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 stand ard 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 a nd an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to t he parent or parents, unless the contrary is shown by clear and convincing evidence.” The Supre me Court elaborated in Hunter v Hunter , 484 Mich 247, 265; 771 NW2d 694 (2009): “A third party seekin g custody must meet a higher threshold. He or she m ust establish by clear and conv incing evidence that it is not in the child’s best interests under the factors specified in MCL 722.2 3 for the parent to have custody.” Similarly, a court may not “issue a new order so as to change t he established custodial environment of a child unless there is presented clear and conv incing evidence that it is in the best interest of the child.” M CL 722.27(1)(c). Our state’s jurisprudence has “consistently recognized” that the presumption of legitimacy arising from a c hild’s birth to a married mother may be overcome only by a showi ng predicated on clear and convi ncing evidence. In re KH
, 469 Mich 621, 634-635; 677 NW2d 800 (2004). As MP’s legal fath er, Jeffrey was entitled to a presumption that MP’s best interests would be served by his con tinuation in that role. See MCL 722.25(1).

In enacting the RPA, the Legislature left the statutory presum ptions 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 inter ests are served by maintaining that relationship, regardless of bio logical “truth.” Our Supreme Co urt 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 br ought under the RPA. By comma nding consideration of a child’s best interests as part and parcel of the RPA inquiry, t he 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 dr ew upon other statutes when it d etermined the standard of proof for actions brought under the Whistleblowers Protection Act, MC L 15.361 et seq .: “Because whistleblower claims are analogous to other antiretaliation emp loyment claims brought under employment discrimination statutes prohibiting various discrimi natory animuses, they ‘should receive treatment under the standards of proof of those analogo us [claims].’ ” Debano-Griffin v Lake Co , 493 Mich 167, 175-176; 828 NW2d 634 (2013) (citation omitted, alteration in original).-7- born out of wedlock. The parental rights and concomitant right s of an alleged father (such as Demski) emerge only after a cour t 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 wa s subordinate to MP’s best interests, and (2) as MP’s legal father, Jeffrey enjoyed a pres umption 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 m ay outweigh a genetic link between a child and a stranger. And although the Legislature did not spe cify the standard of proof applicable to best-interest determinations under the RPA, it di d not enact the statute in a vacuum. The principles that only clear and convincing evidence of a chi ld’s best interests justify disrupting an established environment or depriving a legal fath er of his paternal rights are firmly fixed in family law. I cannot conclude that the Legislature in tended to abandon the heightened standard of proof in a directlyanalogous custodial context sim ply because it failed to reiterate it in the RPA.

Orders entered under the RPA have grave and far-reaching conse quences. Disestablishing Jeffrey’s paternity renders him a legal strange r to MP, despite that Jeffrey and Cassidie will continue to raise he r as parental partners and wi ll appear to the world (such as MP’s school and friends) as her parents. As Judge Kirsten Fran k Kelly pointed out in Helton v Beaman , 304 Mich App 97, 126; 850 NW2d 515 (2014) (KF K ELLY , J., concurring), if Cassidie were to die, Jeffrey “would . . . have to seek custody as a thi rd party and there is no guarantee that he would succeed or even h ave standing.” Regardless of su bsequent custody or parenting time decisions, inserting a new father into a child’s life is i nherently destabilizing. MP looked to Jeffrey for fulfillment of her needs. She understood that he, and only he, was her dad. Disconnecting and thereby foreve r altering that relationship ri sks 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 e nforce the presumption favor ing stability and marriage.

Thus, I distill from the RPA’s framework and its statutory bac kground 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. Adopti on 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 serv ed by severing Jeffrey’s paternal rights and inserting Demski in that role. Even under a prepond erance standard, the trial court’s best-interest findings contraven ed the great weight of the evid ence.
The court recognized that under factor (d), Jeffrey and his da ughter “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. Th is factor militated against revoking Jeffrey’s paternity. Fac tor (e) requires consideratio n 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 ps ychologist Robin Zollar-8- regarding the cognitive abiliti es and emotional capacities of two-year-old children. In my view, Zollar’s unchallenged testimony supports that affiliating Demsk i would not serve MP’s best interests.

Zollar explained that at MP’s age, “children are still very de pendent physically and emotionally on a parental caretaker[.]” Further, Zollar stress ed, “it is also an age that is influenced by the ability to communicate and the ability to rec eive 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 h erself or always understand,” as is “normal” at her age. Zollar expl ained that at two-and-a-half y ears 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 par ent. “[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 highligh ted that “change in the parental family structure” may produce “mental anxiety. It can cause so me acting out behaviors, such as problems with sleep, different t hings for different children. Frustration and anger.” Zollar continued:

Two and a half can be a pretty frustrating anger age anyway, b ecause they’re starting to, what we call “individuate,” they’re beginn ing 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 developmenta l age, with not the ability to be able t o utilize language to r esolve it or to unde rstand it . . . .

In my view, the great weight of the evidence supported Zollar’ s testimony that because of her age, MP’s best interes ts 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 int erests 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. Generall y, she offered, introducing a new person “as an individual” would be “less confusing” than introd ucing 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 ve ry confusing, particularly whe n you’re fairly young. I think it’s pretty hard to put that into any perspecti ve. I think that different issues happen when you’re older and that happens, butI think it’s pretty basic when you’re two and [a] ha lf years old that that’s going to be pretty confusing.

* * *-9- Q. So let’s get back to the factor. Do you have an opinion in thi s case, again based on observation, experience and all that, whether in troducing a new father figure, be that Mr. De mski or anyone else, would cause h arm 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 f eeling pretty vulnerable.

Zollar elaborated that adding a new “parental figure when a pa rental figure already exists . . . can sometimes create some alienation between the child” a nd 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 c ause “some real anxiety, particularly dependent on how that introduction is made, how th at relationship is expected or requested to proceed.” She concluded: “And sadly, there are m any times that the child isn’t taken into consideration , the parents are.”

On cross-examination, Zollar re iterated that introducing a new parent could harm a child, while admitting that it could also benefit the child. She clar ified that if the new parent supports the child emotionally “[f]or a sustained period of time,” the c hild could benefit. As Zollar’s testimony concluded, the Petlicks’ attorney (Kurt Armstrong) re turned to the issue of harm to MP:

Q . Is it more likely that harm would result to [MP] by introduc ing 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 objecti on.
Now, if you can’t, we’ve got a pr oblem. Can you answer the que stion?

[ Zollar ]: I’ll try. I think it depends on the things that I talked a bout earlier: the commitment, the way it is done, and the sustainabi lity and the willingness of all the parties to work towards this happening i n 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 iss ues, I’ve had those issues for years that I’ve had to work with. But so much is de pendent on that commitment. The motive of the adults involved, the commitment, the ability to listen and learn when suggestions are given by someone whose pr imary interest is the child.-10- Grownups can take care of themselves, little kids can’t. And s o they need somebody that can act as an advocate for that relationship goin g 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 h er [sic] for an hour or so and she’ll be with . . . Uncle Bob and Aunt Suzie and dad an d she’ll be fine,” I think that is not taking into account the child’s needs. I thi nk that is only focusing on the adult needs and I think that is wrong; because she has n o way to say, “No, I’m not going to do it.” She has no way to ask questions at th is point. She has no way to understand.

So it’s nothing personal about a ny individual. It’s what’s goi ng to be best for this child. And I - - I strongly believe that, because I’v e 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 th e defendants individually and a jo int session including the minor , providing opportunity to observe the minor’s interactions with defendants . She confirmed that the minor is initially re ticent around new people. Her re sponses however to the questioning related directed to the harm factor address les s 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 ar e factors she was not afforded the opportunity to ask the plaintiff but would hav e 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; th eir commitment. She did finally opine that [MP] could benefit from sustained co mmitment from the alleged father.

That MP “could benefit from sustained commitment from the alle ged 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 h er life occasioned by the introduction of a new parent. In my estimation, the trial cour t’s resolution of the harm inquiry rested on speculation, not proof. Stated alternatively, the ev idence was in equipoise. Substituting Demski as MP’s new father could hurt MP, or it mig ht 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 Demsk i 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 m itigated. Indeed, Demski never even acknowledged awareness of any emotional dangers for MP attendant to his parenthood quest.-11- The majority correctly observe s that “Zollar’s expert testimon y supported both a conclusion that MP could be harmed by [Demski’s] introduction i nto 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 th e obvious: Demski failed to carry his burden of proof on this factor.

Factor (g) requires a court to c onsider “[o]ther factors that may affect the equities arising from the disruption of the fat her-child relationship.” The cou rt 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 paragrap h:

Consistent with the testimony of the defendants, they are comm itted to each other, and each to [MP], whether Jeffrey Petlick is the id entified legal father because of his bond of love for her and he will continue to sup port emotionally, financially, and provide the pro tections she requires. Equitab ly for the minor by law, the plaintiff would be re quired to provide for [MP]’s fina ncial support.

While Jeffrey’s multi-faceted commitment to MP is both admirab le 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 work able 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 sen t 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 pla n on selling my house to afford this.” Demski answered affirmatively when asked on cross-exami nation:

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 terminat ed’ or ‘I don’t want to have any rights, I don’t want to pay any child support’, correct?

The record simply does not substa ntiate a clear or convincing l ikelihood, or an evidentiary preponderance, that Demski would commit himself and his resourc es over the long term. His track record of commitment to MP is hardly consistent or reassu ring.

While the trial court’s exercise of its discretion in consider ing the RPA’s best-interest factors should be afforded defere nce, I believe that the eviden ce clearly prepondera tes 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 rever se 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 ben ch ruling under the RPA on July 26, 2013. In that ruling, the court ordered that Demski meet with Zollar for a “continuing co ncluding evaluation as it would relate to the welfare of [MP].” The court continued: “And befo re any further orders from the-12- Court will issue regarding contact of any form, Ms. Zollar need s to complete that and report to the Court. I think that is rel ated to both custody and parenti ng time.”

On August 29, 2013, the trial cour t entered an order memoriali zing its bench ruling. That order stated in relevant part: “Child custody and parenting ti me 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 t rial court entered an order awarding Cassidie and Demski joint legal custody of MP, with Ca ssidie retaining physical custody. The order stated that Demski would have parenting tim e “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 r econsideration of the custody an d 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 ent ering a seven-page written order reviewing the court’s fi ndings under the best-interest fa ctors of the RPA. For the first time, the court detailed its findings regarding MP’s established cust odial environment and the bestinterest 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 fa ilure to hold a custody hearing. The majority has either misapprehen ded the chronology of events or has disregarded basic preservation principles.

No record evidence supports tha t the Petlicks could or should have anticipated that the trial court would issue a custody and parenting time order with out holding a separate evidentiary hearing. Accordingly, the Petlicks could not have raised an ob jection 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 obj ecting earlier, a s 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 t ime order with a motion for reconsideration because reconsideration was the only vehicle av ailable to them. I know of no precedent requiring litigants to read tea leaves or judicial hi nts to foresee a ruling not yet made. In my view, the issue raised in the Petlicks’ motion for recons ideration 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 t he failure to conduct an evidentiary hearing] de novo.”).

The trial court committed two serious errors warranting revers al of its custody and parenting time order. First, it rendered its order in the abse nce of an evidentiary hearing during which the parties could introduce evidence relevant to the fact ors set forth in the CCA and crossexamine witnesses. Second, in crafting its ruling, the trial c ourt considered ex parte evidence which it deliberately withheld from the parties. Both errors s hould fundamentally undermine a reviewing court’s c onfidence in the trial court’s custody and p arenting-time rulings.-13- The CCA “is intended to erect a barrier against removal of a c hild from an established custodial environment and to minimize unwarranted and disruptiv e 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 establishe d custodial environment resided with Cassidie.

A court may not issue a new order changing a child’s establish ed custodial environment absent “clear and convincing evidence that it is in the best in terest of the child.” MCL 722.27(1)(c). 4 The court rules contemplate t hat a court will conduct an evid entiary 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 en compass 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, M CL 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 recei ves substantial nutrition through nursing.

(c) The reasonable likelihood of a buse or neglect of the child during parenting time.

(d) The reasonable likelihood of a buse of a parent resulting fr om the exercise of parenting time.

(e) The inconvenience to, and burdensome impact or effect on, t he child of traveling for purposes of parenting time.

(f) Whether a parent can reasonab ly be expected to exercise par enting time in accordance with the court order.

(g) Whether a parent has frequen tly failed to exercise reasonab le parenting time.

(h) The threatened or actual dete ntion of the child with the in tent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent's temp orary residence with the chil d in a domestic violence shelter shall not be cons trued as evidence of the cust odial parent's intent to retain or conceal the child from the other parent.

(i) Any other relevant factors. [MCL 722.27a.]-14- after the filing of notice that a custody hearing is requested[ .]” Ample case law supports that a court cannot order a custodial cha nge without first holding a h earing. 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 circumve nt and frustrate one of the pur poses of the Child Custody Act—to minimize the prospect o f unwarranted and disruptive chan ges 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 th e law by issuing an ex parte order changing custody without any notic e to the custodial parent or a hearing on the issue whether clear and convincing evidence was presented that a change of cu stody 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 s even witnesses providing several hundred pages worth of testimony and dozens of exhibits present ed 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 t he trial court refused to cons ider it. Equally im portant, the trial court denied the parties an opportunity to cross-examine Zollar regarding the custody and parenting-time recommendations which ultimately guided the tria l court’s decisions.

During Zollar’s testimony at the RPA trial, the Petlicks’ coun sel attempted to elicit her opinion regarding parenting time i n the event the court ordered it. Demski’s counsel objected, arguing that that Zollar’s opini on was not relevant “to these p roceedings”:

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 a ny bridging - -

Mr. Banyon : I’m - - I’m going to objectto this question, Your Honor. I t’s certainly not relevant t o these proceedings.

Mr. Armstrong : I’ll withdraw it. I’m jus t 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 Petlick s’ attorney tried to question Zo llar regarding her experience in “custodial dispute[s]” not involving abuse or neglect. The tri al 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 s o, given the fact that I frequently get referrals regarding other - - ot her issues that involve kids - - or children under th e age of two and a half.

Q . And how many of that hundred or so have you - --15- 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 do esn’t want to go into that area; and, therefore, it’s not relevant today. We could d eal with that later apparently. If - - if the Court - -

The Court : All right. I’m going to - - I’m going to sustain the object ion as to where we are now. . . .

These excerpts illustrate that neither the parties nor the tri al 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 th e best-interest factors under t he 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 betw een the parties involved and the child.

(b) The capacity and disposition of the parties involved to giv e the child love, affection, and guidance and to continue the education and raisi ng of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to pro vide the child with food, clothing, medical care or o ther remedial care recognized and permitted under the laws of this state in p lace of medical care, and othe r material needs.

(d) The length of time the child has lived in a stable, satisfa ctory environment, and the desirability of m aintaining continuity.-16- substantiate that the parties ag reed 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 suffi cient 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 en tertained “a report with recommendations relative to Custody and Parenting time,” author ed by Zollar. According to the trial court’s written opinion de nying the Petlicks’ motion for reconsideration, the report was “received by the court [on] November 20, 2013.” Zollar’s repor t is not in the record and apparently was not provided to counsel. Yet according to the t rial court’s opinion on reconsideration, the substance of the report formed the basis f or the trial court’s parenting time order. 6

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

(e) The permanence, as a family unit, of the existing or propos ed custodial home or homes.

(f) The moral fitness of the parties involved.

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

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

(i) The reasonable preference of the child, if the court consid ers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facil itate and encourage a close and continuing parent-child relationship between the chil d and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was d irected 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 l ight of all proofs preserved,” “The Friend of the court was requ ired to establish a bridging s chedule for the exercise of the initial parenting time to be held in a ‘therapeutic setting’ un der the direction of counselor Robin Zollar,” “The court upon consider ation of her report and recomm endation then fashioned the order from which Defendants seek reconsideration,” Demski’s “pa renting time shall consistent with Robin Zollar’s recommenda tion be supervised by her in a th erapeutic environment.”-17- [a] witness so appointed shall advise the parties of the witnes s’ findings, if any; the witness’ deposition may be taken by any party; and the witn ess may be called to testify by the court or any party. The witness shall be subject to crossexamination by each party, including a party calling the witnes s. [MRE 706(a).]

The court did not advise the parties that Zollar had made any f indings until issuing its opinion on reconsideration and never inform ed the parties of their substan ce and content. Z ollar was not subject to cross-examination befo re the trial court (apparently ) incorporated Zollar’s opinions into its custody and parenting-time decision. Ultimately, it i s unknown whether the trial court actually adopted Zollar’s recomm endations as she expressed them . This possibility buttresses my belief that the trial court’ s procedure violated MRE 706.

The Code of Judicial Conduct doe s not preclude all ex parte co mmunications with witnesses. However, it requires that a judge who elects to “ob tain 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 affor ds the parties reasonable opportunity to respond.” Code of Judicial Conduct, Canon 3(A)( 4)(b). This exception to the general rule barring ex parte co mmunications comes closest to a ddressing 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 pa rties. The report’s absence from the record precludes this Court’s review of the trial court’s i nterpretation of Zollar’s recommendations. I find the tria l court’s procedure in this hi ghly contested custody case deeply troubling.

The majority, however, shrugs o ff 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 witn esses “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 c ase, 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 th e court to say whether or not the right will be accorded. The right of cross-examinat ion is regarded of such consequence that it is made one of the chief grounds for t he exclusion of hearsay evidence. If the right to cross-examine an adverse wit ness be denied or unduly limited or restrained, th e testimony given by the witnes s would, in a very marked degree, partake of the character of hearsay testimony. It is always permissible upon the cross-examin ation of an adverse witness to draw from him any fact or circumstance that may tend to show his relations wi th, feelings toward, bias or prejudice for or against, either party, or that may dis close a motive to injure the one party or to befriend or favor the other. The pa rty producing a witness may not shield him from such proper cross-examination f or the reason that the facts thus elicited may not be competent upon the meri ts of the cause.-18- The majority concedes that it would have been “ better practice to have received [Zollar’s] report before the conclusion of p roofs at trial, and to have in cluded that report in the trial court record[.]” Yes, it would. But the majority’s casual observati on misses the point. “Crossexamination is a critical element in the truth-determining proc ess.” Brock v Roadway Express, Inc , 481 US 252, 276; 107 S Ct 1740; 95 L Ed 2d 239 (1987). It en hances the quality and the reliability of the decision-making process. The Petlicks had n o opportunity to challenge and to test Zollar’s opinions in a manne r that would potentially influ ence the trial court’s decisionmaking process. Whether Zollar once served as the Petlicks’ ex pert witness is of no moment, given that she later provided cr ucial information to the trial court in a manner that can only be described as secret. Her opinion s and recommendations may have been incomplete or misleading or based on improper criteria. The majority is sati sfied with remaining in the dark. In my view, MP’s best int erests demand an airing.

Zollar’s opinions and recommendations are not matters of natio nal security. They guided the Friend of the Court’s parenting time recommendations and th e trial court’s orders, and the majority has proposed no logical basis for excluding those opin ions from effective and adversarial dissection. I would hold that the trial cour t clearly erred by denying the Petlicks an opportunity to review Zollar’s re port 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 wellestablished rules governing cust ody and parenting-time determin ations 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 eviden ce contaminated its best-intere st 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 evidentiaryfoundations. 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