FILED JULY 31, 2009 

ROBERT HUNTER and LORIE HUNTER, 

 Plaintiffs-Appellees, 

v No. 136310 

TAMMY JO HUNTER, 

 Defendant-Appellant, 

and 

JEFFREY HUNTER 

 Defendant. 

BEFORE THE ENTIRE BENCH 

 

KELLY, C.J. 

This child custody case requires us to examine (1) the scope of the 

constitutional rights of natural parents in raising their children, (2) how provisions 

of Michigan’s Child Custody Act (CCA)1

 interact with those rights, and (3) 

whether the circuit court in this case applied the correct legal standards (a) in 

 1

 MCL 722.21 et seq. 

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice: 

Marilyn Kelly 

Justices: 

Michael F. Cavanagh 

Elizabeth A. Weaver 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

Diane M. Hathaway
2

finding defendant,2

 the children’s biological mother, to be an unfit parent and (b) 

in awarding legal and physical custody of her four children to the children’s 

paternal uncle and his wife. 

We conclude that the circuit court did not apply the correct legal standards. 

We also overrule Mason v Simmons,

3

 which the lower courts relied on, because its 

holding is inconsistent with the statutory language of the CCA and inconsistent 

with longstanding principles of Michigan custody jurisprudence. Therefore, we 

reverse the judgment of the Court of Appeals and remand the case to the circuit 

court for further proceedings. 

I. FACTS AND PROCEDURAL HISTORY

In 2002, Tammy Hunter and her husband, Jeff Hunter, lived in Indiana with 

their four young children, who ranged in age from two to nine years. There is no 

evidence in the record that Indiana child welfare authorities ever investigated or 

sought jurisdiction over the family. Tammy and Jeff began using crack cocaine. 

In August 2002, Tammy left her four children in Jeff’s care at home and did not 

return for six days. During her absence, Jeff contacted his brother and sister-inlaw in Michigan, plaintiffs Robert and Lorie Hunter, and requested their 

 2

 “Defendant” herein refers to appellant Tammy Jo Hunter. 

3 Mason v Simmons, 267 Mich App 188; 704 NW2d 104 (2005). 
3

assistance. Robert drove to Indiana, collected the children, and returned to 

Michigan. 

Two months later, Tammy and Jeff came to Michigan and retrieved their 

children, claiming that they had successfully overcome their drug addictions. A 

short time later, however, plaintiffs learned that Tammy and Jeff had relapsed. 

Plaintiffs again drove to Indiana and brought the children to Michigan. Robert 

testified that he and Lorie told Tammy and Jeff that “we were taking the kids . . . 

and told them they had to give us the kids and sign these guardianship papers.” 

Tammy signed papers establishing a limited guardianship with plaintiffs. 

Seven months later, in May 2003, Tammy and Jeff petitioned the Oakland 

Circuit Court to terminate plaintiffs’ guardianship. However, they failed to appear 

at a June 2003 hearing because they were again using cocaine. On July 1, 2003, 

the circuit court dissolved the limited guardianship and appointed plaintiffs full 

guardians of the children. 

Tammy’s life further deteriorated when she was incarcerated in August 

2004. She was released from prison in April 2005 and, three months later, filed a 

petition in the Oakland Circuit Court seeking an opportunity to visit her children.4

 

The circuit court required her to verify her drug-free status since her release from 

prison. She was required to undergo biweekly drug testing, attend Alcoholics 

 4

 Tammy obtained a divorce from Jeff while he was incarcerated in Indiana. 

Jeff has been incarcerated on and off since 2003 and was never a party to this 

appeal. 
4

Anonymous or Narcotics Anonymous meetings, and maintain weekly telephone 

contact with her children. She complied with each of these requirements. 

On November 9, 2005, the circuit court ordered Tammy to begin paying 

child support and allowed supervised visits with the children. At a review hearing 

conducted six months later, the circuit court noted that Tammy’s visitation had 

gone well and that she regularly paid child support. The circuit court expanded 

her parenting time, awarding her unsupervised weekend visits in Michigan during 

May and June 2006 and overnight, unsupervised visits in Indiana beginning in 

July 2006. The court also continued her child support obligation and ordered her 

to submit to weekly drug screens. She again met each of the court’s requirements. 

By the time this case was filed, Tammy was having monthly unsupervised 

weekend visits with the children at her Indiana home and in Michigan. 

In May 2006, plaintiffs filed this action seeking legal and physical custody 

of the children. The parties stipulated that the Friend of the Court (FOC) referee 

would make a preliminary finding regarding the children’s established custodial 

environment and whether Tammy was a “fit parent,” using Mason v Simmons “as 

its guide.” 

The referee determined that the children had an established custodial 

environment with plaintiffs and that Tammy was an unfit parent. Tammy filed 

objections to the referee’s report and requested a hearing de novo. Ten days after 

receiving the referee’s report, the circuit court entered another order. It required 

Tammy to attend parenting classes, submit to random drug screens, participate in 
5

substance abuse counseling, and attend family counseling sessions with her 

children and her live-in boyfriend. Tammy again complied with all requirements. 

At the evidentiary hearing, several witnesses testified regarding the 

circumstances in 2002 and 2003 that led to the establishment of plaintiffs’ 

guardianship of the children. Tammy testified that she had remained drug-free 

since August 2004 and supplied the court with a compendium of negative drug 

screen reports. She also testified that she earned $10.50 an hour as an assistant 

sales manager and lived with her boyfriend in a four-bedroom home in Indiana. A 

family therapist who had evaluated the children pursuant to a circuit court order 

reported that the children were “attached” to Tammy and “have a preference to 

move [in] with her full time.” 

The circuit court concluded that Tammy was not a fit parent. In its bench 

ruling, the court gave its reasons: 

Now, as to the issue of mom’s fitness. 

I believe that mom is a very nice person. 

That she loves these children very dearly and I think they love 

her. 

And I’m impressed by the progress that she has made. 

But I don’t believe that her love for the children is equivalent 

to being a fit parent. 

When we look at the definition of fitness, it’s not about 

whether she’s a nice person, it is not about whether today she has 

made progress—and, again, she has made progress—it is about what 

happened in conjunction with these kids. 
6

And in 2002 the parents were drug addicted. 

They could not provide a home for the children and the 

family intervened and rather than having [Children’s Protective 

Services] involvement and have these children go to foster care the 

family took over and stepped in and provided a stable and loving 

home for these four kids, it doesn’t happen very often and it’s 

wonderful when that does happen and I think, again, these kids are 

doing as well as they are today because of that intervention. 

And mom has made progress but there are still numerous 

questions and numerous issues. 

These kids have never really lived with her for the last five 

years. 

And in Dr. [Jerome] Price’s report he talks about that, that 

they regard going to mom’s as vacation time. 

They have not had to do the grueling, day to day, sort of 

parenting and be tested that way so we can make some determination 

about what the current situation is. 

And mom lives with a man, who seems like a very nice 

individual also, a hard working person, but they live in an out of 

wedlock relationship and exposing the children to an out of wedlock 

relationship, given all of the other instability of their lives at this 

point is questionable judgment. 

I heard his testimony that he’s listed her as a beneficiary on 

his life insurance and he expects that he will leave her his assets 

should he pass away. 

But the truth of the matter is she has no legal rights as a live 

together person. 

There is a reason that we have marriage in this society and 

marriage protects her. 

The relationship she is in gives her no protection and if at any 

time Mr. McConnell wants to tear up the letter, change the 

beneficiary, move out, he, of course is free to do so, as she is, and 

there are no legal ramifications to that. 
7

So she is not really very well protected and without his 

assistance she cannot maintain the children. 

She’s been in a home for six months; that’s a lease home and 

she admitted herself that she could not possibly maintain the 

children financially without Mr. McConnell being there and without 

his financial assistance. 

So I think she has made terrific strides but I don’t think she’s 

at a point yet where we can say she is able to provide a stable and 

secure home for these four children, who have been out of her care 

for five years. 

So I don’t believe that’s the definition of fitness. 

The court then held a best interests hearing. After considering the 

testimony, the court agreed with the referee’s findings. The court determined that 

9 of the 12 best interest factors5

 favored plaintiffs and that the parties were equal 

with respect to 2 of the factors.6

 The court also stated on the record that it had 

“taken into consideration” the remaining factor, the reasonable preference of the 

children,7

 in reaching its decision. The court held that it was in the children’s best 

interests to remain with plaintiffs and granted them physical and legal custody. It 

also ordered Tammy to pay child support and $4,000 of plaintiffs’ attorney fees. 

The court later denied Tammy’s motion for reconsideration. 

Tammy filed an application for leave to appeal in the Court of Appeals. In 

a split, unpublished decision, the Court of Appeals majority affirmed the custody 

 5

 MCL 722.23(b), (c), (d), (e), (f), (g), (h), (j), and (l). 

6

 MCL 722.23(a) and (k). 

7

 MCL 722.23(i). 
8

determination, but reversed the award of attorney fees.8

 Judge Gleicher dissented. 

She would have reversed the custody determination because the circuit court’s 

decision regarding parental fitness was unconstitutional and against the great 

weight of the evidence. We granted leave to appeal.9

II. LEGAL BACKGROUND

We review de novo questions of law involving statutory interpretation and 

questions concerning the constitutionality of a statute.10 Findings of fact in child 

custody cases are reviewed under the great weight of the evidence standard.11 

 The central issues in this case are (1) what is the proper application of MCL 

722.25(1) and MCL 722.27(1)(c) and (2) do the federal constitutional standards 

concerning the fundamental rights of parents to raise their children control our 

answer to the first question. 

A. United States Supreme Court Precedent 

 The importance of the family and the “essential,” “basic,” and “precious” 

right of parents to raise their children are well-established in United States 

 8 Hunter v Hunter, unpublished opinion per curiam of the Court of Appeals, 

issued March 20, 2008 (Docket No. 279862). 

9 Hunter v Hunter, 482 Mich 981 (2008). 

10 Taylor v Gate Pharmaceuticals, 468 Mich 1, 5; 658 NW2d 127 (2003). 

11 MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889 

(1994). 
9

Supreme Court jurisprudence.12 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.”13 

Therefore, to satisfy constitutional due process standards, the state “must provide 

the parents with fundamentally fair procedures.”14 

 In 2000, in the case of Troxel v Granville,

15 the United States Supreme 

Court delivered its most relevant pronouncement in this area of the law. In a 

plurality opinion, the Court struck down the state of Washington’s “breathtakingly 

broad” visitation statute as an unconstitutional infringement on the fundamental 

right of parents to rear their children.16 The statute authorized “‘any person’” to 

 12 Stanley v Illinois, 405 US 645, 651; 92 S Ct 1208; 31 L Ed 2d 551 

(1972), quoting Meyer v Nebraska, 262 US 390, 399; 43 S Ct 625; 67 L Ed 1042 

(1923), Skinner v Oklahoma, 316 US 535, 541; 62 S Ct 1110; 86 L Ed 1655 

(1942), and May v Anderson, 345 US 528, 533; 73 S Ct 840; 97 L Ed 1221 (1953). 

13 Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 

(1982). 

14 Id. at 753-754. 

15 Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000). 

16 Id. at 67. Troxel also included forceful language describing the 

significance of parents’ fundamental liberty interest in the care, custody, and 

control of their children. It noted that this interest “is perhaps the oldest of the 

fundamental liberty interests recognized by this Court.” Id. at 65, citing Meyer, 

262 US at 399, 401. 
10

petition for visitation rights and authorized state courts to grant such visitation 

whenever it “‘may serve the best interest of the child.’”17 

B. Applicable Michigan Law 

In 1970, the Michigan Legislature enacted the CCA. Among its provisions 

are statutory presumptions that apply in custody disputes. The presumptions 

pertinent to this case are found in MCL 722.25(1) and MCL 722.27(1)(c). MCL 

722.25(1) states: 

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 shown by clear and convincing 

evidence. 

 MCL 722.27(1)(c), by contrast, provides in part: 

 If a child custody dispute has been submitted to the circuit 

court as an original action under this act or has arisen incidentally 

from another action in the circuit court or an order or judgment of 

the circuit court, for the best interests of the child the court may do 1 

or more of the following: 

* * * 

 

(c) Modify or amend its previous judgments or orders for 

proper cause shown or because of change of circumstances until the 

child reaches 18 years of age . . . . The 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. The custodial environment of a child is 

 17 Id. at 67. 
11

established if over an appreciable time the child naturally looks to 

the custodian in that environment for guidance, discipline, the 

necessities of life, and parental comfort. The age of the child, the 

physical environment, and the inclination of the custodian and the 

child as to permanency of the relationship shall also be considered. 

Thus, a conflict arises between these sections when a court hears a custody 

dispute between a child’s natural parent and a third party with whom the child has 

an “established custodial environment.” This Court has not addressed the proper 

application of these sections of the CCA in such cases. 

 On numerous occasions before Troxel was decided, the Court of Appeals 

considered the interplay of these two presumptions. Panels of the Court came to 

conflicting conclusions about how to reconcile them.18 However, after Troxel, in 

Heltzel v Heltzel, the Court recognized that, to properly protect a parent’s 

fundamental liberty interest, the presumption of MCL 722.25(1) in favor of the 

natural parent must control.19 

 18 Compare Rummelt v Anderson, 196 Mich App 491; 493 NW2d 434 

(1992), and Glover v McRipley, 159 Mich App 130; 406 NW2d 246 (1987) (cases 

where both presumptions were applicable. They held that the natural parent has 

the burden. He or she must prove by a preponderance of the evidence that the best 

interests of the child are served by placement with the parent), with Deel v Deel, 

113 Mich App 556; 317 NW2d 685 (1982), Siwik v Siwik, 89 Mich App 603; 280 

NW2d 610 (1979), Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978), 

and Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975) (holding that the 

parental presumption controls unless the third party shows by clear and convincing 

evidence that custody with the natural parent is not in the best interests of the 

child). 

19 Heltzel v Heltzel, 248 Mich App 1, 26-27; 638 NW2d 123 (2001) (“We 

do not believe, however, that the Legislature intended that in every custody 

dispute between a noncustodial natural parent and a third-person custodian, the 
12

Heltzel further concluded that it was imperative that trial courts balance the 

two significant interests. First, the lower courts must adequately safeguard the 

fundamental constitutional nature of the parental liberty interest. Second, they 

must simultaneously maintain the statutory focus of the CCA on the best interests 

of the child. To achieve this balance, Heltzel held: 

[C]ustody of a child should be awarded to a third-party 

custodian instead of the child’s natural parent only when the third 

person proves that all relevant factors, including the existence of an 

established custodial environment and all legislatively mandated best 

interest concerns within [MCL 722.23], taken together clearly and 

convincingly demonstrate that the child’s best interests require 

placement with the third person.[20]

 The Court of Appeals thoroughly considered Heltzel’s analysis when it 

decided Mason. It noted that no published Court of Appeals case had addressed 

the applicability of Heltzel in cases in which a natural parent was unfit or had 

neglected or abandoned a child.21 

Without citing authority to support its conclusion, Mason then 

distinguished Heltzel, saying that it applies only to custody disputes involving fit 

 

third-person custodian could eliminate the fundamental constitutional presumption 

favoring custody with the natural parent, and thus arrive on equal footing with the 

parent with respect to their claim of custody to the parent’s child, merely by 

showing that the child had an established custodial environment in the third 

person’s custody. This interpretation . . . fails to take into proper account the 

parents’ fundamental due process liberty interest in childrearing.”). 

20 Id. at 27. 

21 Mason, 27 Mich App at 198. 
13

parents. It held that when “a parent’s conduct is inconsistent with the protected 

parental interest, that is, the parent is not fit, or has neglected or abandoned a 

child, the reasoning and holding of Heltzel do not govern.”22 Mason thus affirmed 

the trial court’s determination that the defendant was not entitled to the 

constitutional deference afforded a fit parent under Heltzel and Troxel. It extended 

that reasoning to justify denying the natural parent the benefit of the statutory 

presumption in MCL 722.25(1). 

III. THE CCA’S PROTECTIONS

 Custody cases involving natural parents inherently implicate the parents’ 

fundamental liberty interest in the care, custody, and management of their 

children.23 Thus, they implicate the constitutional protections identified in the 

United States Supreme Court cases previously discussed. The threshold question 

this Court must address is whether the relevant provisions of the CCA adequately 

protect a fit parent’s fundamental rights under existing United States Supreme 

Court precedent. 

A. Under Troxel, MCL 722.25(1) Must Control Over MCL 722.27(1)(c) in Order 

to Adequately Protect Fit Parents’ Fundamental Rights 

Troxel established a floor or minimum protection against state intrusion 

into the parenting decisions of fit parents. It invalidated the state of Washington’s 

 22 Id. at 206. 

23 Santosky, 455 US at 753. 
14

third-party visitation statute as a violation of a natural parent’s fundamental rights. 

It reasoned that the Washington statute was flawed because it afforded no 

deference to a fit parent’s decision about his or her children’s best interests.24 

Rather, the statute allowed “any third party seeking visitation to subject any 

decision by a parent concerning visitation of the parent’s children to state-court 

review.”25 Troxel also forbade courts from overturning decisions by a fit custodial 

parent based “solely on the judge’s determination of the child’s best interests.”26 

Rather, it held that courts must give some “special weight” to the parents’ 

determination of their children’s best interests.27 

The constitutional protection in Troxel centers on the “traditional 

presumption that a fit parent will act in the best interest of his or her child.”28 The 

Washington statute’s lack of deference to a fit parent’s decision was inconsistent 

with the presumption that fit parents act in the best interests of their children. 

Hence, it was constitutionally infirm. Using that reasoning, Troxel established that 

a natural parent’s fitness to parent is the touchstone for invoking the constitutional 

protections of fundamental parental rights. The application of the statutory 

 24 Troxel, 530 US at 67. 

25 Id. 

26 Id.

27 Id. at 70. 

28 Id. at 69. 
15

presumption in MCL 722.25(1) must therefore be considered specifically in the 

context of a fit parent to determine whether it satisfies constitutional scrutiny 

under Troxel. 

In Heltzel, our Court of Appeals recognized Troxel’s mandate: In order to 

protect a fit natural parent’s fundamental constitutional rights, the parental 

presumption in MCL 722.25(1) must control over the presumption in favor of an 

established custodial environment in MCL 722.27(1)(c). We agree. 

Several considerations compel this conclusion. First, 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.29 

 29 Bowie v Arder, 441 Mich 23, 43; 490 NW2d 568 (1992) (rejecting the 

argument that the CCA created a substantive right of a third party to seek custody 

of a child with whom the third party has an established custodial relationship. The 

Bowie Court observed that “[t]here is simply no provision of the [CCA] that can 

be read to give a third party . . . a right to legal custody of a child on the basis of 

the fact that the child either resides with or has resided with that party”); In re 

Clausen, 442 Mich 648, 682-684; 502 NW2d 649 (1993) (rejecting the argument 

that United States Supreme Court precedent established a federal constitutional 
16

Finally, we note that the vast majority of Michigan cases interpreting the 

CCA support the conclusion that these presumptions were not meant to be given 

equal weight.30 This conclusion is also in accord with Michigan’s longstanding 

history of affording great respect to parental authority while consistently 

recognizing that the best interests of the child control the analysis.31 For these 

reasons, we conclude that, when these presumptions conflict, the presumption in 

MCL 722.27(1)(c) must yield to the presumption in MCL 722.25(1).32

 

right of a third party to seek custody of a child with whom the third party has an 

established custodial relationship). 

We note that plaintiffs have standing to pursue this custody action by virtue 

of their status as the children’s legal guardians. MCL 722.26b(1). 

30 Bowie, 441 Mich at 43 (holding that an established custodial environment 

does not establish a substantive basis on which to sue for custody under the CCA);

Deel, 113 Mich App at 561 (“Stevens holds that the presumptions should be 

recognized equally, not weighted equally, and the language used in the statutes 

suggests that the presumptions are not, in fact, of equal weight.”) (emphasis in 

original). The few cases that have held otherwise have since been rejected as 

unconstitutional under Troxel. E.g., Heltzel, 248 Mich App at 21-23 (“reject[ing]” 

Rummelt and declining to follow its “unconstitutional[]” application of the CCA). 

Rummelt and its predecessors had resolved the conflict in the statutory 

presumptions. They said that the natural parent must show by a preponderance of 

the evidence that removing the child from an established custodial environment 

was in the child’s best interests. 

31 Fletcher, 447 Mich at 889 (“[T]he primary goal of the Child Custody Act 

. . . is to secure custody decisions that are in the best interests of the child.”); 

Greene v Walker, 227 Mich 672, 677-681; 199 NW2d 695 (1924) (citing cases). 

32 “‘[A]s between two possible interpretations of a statute, by one of which 

it would be unconstitutional and by the other valid, our plain duty is to adopt that 

which will save the act.’” Bowerman v Sheehan, 242 Mich 95, 99; 219 NW 69 
17

A remaining constitutional question involves the amount of deference due 

under Troxel to fit parents. We conclude that the statute provides sufficient 

deference to a fit natural parent’s fundamental rights to the “care, custody, and 

management of their child . . . .”33 We so hold because the statute requires, in 

order to rebut the parental presumption, clear and convincing evidence that 

custody by the natural parent is not in a child’s best interests. 

The clear and convincing evidence standard is “the most demanding 

standard applied in civil cases . . . .”34 This showing must “‘produce[] in the mind 

of the trier of fact a firm belief or conviction as to the truth of the allegations 

sought to be established, evidence so clear, direct and weighty and convincing as 

to enable [the factfinder] to come to a clear conviction, without hesitancy, of the 

truth of the precise facts in issue.’”35 

We agree with the Court of Appeals in Heltzel that, given the unique 

constitutional considerations in custody disputes involving natural parents, “it is 

not sufficient that the third person may have established by clear and convincing 

evidence that a marginal, though distinct, benefit would be gained if the children 

 

(1928), quoting Justice Holmes in Blodgett v Holden, 275 US 142, 148; 48 S Ct 

105; 72 L Ed 206 (1927). 

33 Santosky, 455 US at 753. 

34 In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). 

35 Id. (citations omitted). 
18

were maintained with him.”36 A third party seeking custody must meet a higher 

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

in the child’s best interests under the factors specified in MCL 722.23 for the 

parent to have custody. This is entirely consistent with Troxel’s holding. 

Although a fit parent is presumed to act in his or her child’s best interests, a court 

need give the parent’s decision only a “presumption of validity” or “some weight.” 

That is precisely what MCL 722.25(1) does when it requires clear and convincing 

evidence to rebut the presumption. 

Given our determination that (1) the parental presumption in MCL 

722.25(1) prevails over the presumption in favor of an established custodial 

environment in MCL 722.27(1)(c) and that (2) the parental presumption can be 

rebutted only by clear and convincing evidence that custody with the natural 

parent is not in the best interests of the child, we conclude that MCL 722.25(1) 

satisfies constitutional scrutiny under Troxel.

37 

 36 Heltzel, 248 Mich App at 28. 

37 Our constitutional analysis is further supported by a comparison with 

similar statutes in other states. The CCA’s provisions governing custody disputes 

between a natural parent and a third party are more deferential to the natural parent 

than some, but less deferential than others. Michigan appears to fall near the 

middle of the spectrum. At one end are the strict “parental rights” jurisdictions, 

which base a parent’s right to custody on the fitness of the parent. At the opposite 

end are the “best interests” jurisdictions, which base custody exclusively on the 

child’s needs and welfare. The standards in between usually give preference to the 

biological parent through a rebuttable presumption that the best interests of the 

child are served by giving custody to the natural parent. See, generally, anno: 

Award of custody where contest is between child’s parents and grandparents, 31 
19

 

ALR3d 1187, 1197-1198; In re Guardianship of Jane Doe, 93 Hawaii 374, 384-

385; 4 P3d 508 (Hawaii App, 2000). 

Under the doctrine most deferential to natural parents, the parents are 

entitled to the custody of their children unless (1) it clearly appears that they are 

unfit, or (2) they have abandoned their right to custody, or (3) “extraordinary 

circumstances” exist that require they be deprived of custody. Id.; Ex parte GC, 

Jr, 924 So 2d 651, 656 (Ala, 2005) (requiring “clear and convincing evidence” of 

parental unfitness to rebut the presumption in favor of the natural parent) (citations 

omitted); State ex rel KF, 2009 Utah 4, P67; 201 P3d 985 (2009) (requiring 

evidence of three factors establishing unfitness in order to rebut the presumption in 

favor of the natural parent). Most courts using this standard rarely evaluate the 

best interests of the child when resolving the issue. Rebutting the parental 

presumption in the states using this standard typically hinges on a determination of 

unfitness. Hence, this standard undoubtedly provides sufficient deference to a 

natural parent’s decisions regarding the care, custody, and maintenance of his or 

her child to satisfy Troxel. 

Michigan, along with many other states, applies an intermediate parental 

presumption standard that favors the biological parent. It is rooted in the Troxel 

rationale that custody with the natural parent serves the best interests of the child. 

Usually nonparents may rebut the presumption favoring the parent only by a 

showing of clear and convincing evidence that custody with the natural parent is 

not in the child’s best interests. MCL 722.25(1); In re Guardianship of Doe, 93 

Hawaii at 385. 

The standard least deferential to the natural parent’s wishes is often referred 

to simply as the “best interests of the child standard.” It focuses on the interests of 

the child and defines the relative benefits to the child of being with one or the 

other party. It requires the court to compare the totality of the circumstances of 

the two potential custodians, usually on the basis of statutory considerations 

similar to those embodied in MCL 722.23. Courts using this standard typically 

grant custody by determining, by a preponderance of the evidence, which 

placement is in the best interests of the child.

The states that use this best interests of the child standard often give some 

deference to the natural parent. But they are less deferential to the natural parent’s 

wishes than Michigan is in MCL 722.25(1). For example, Or Rev Stat 109.119 

(2007) provides a parental presumption. But it allows a third party having an 

established parent-child relationship with the child to rebut it. The third party 
20

B. Troxel Does Not Require a Threshold Determination of Parental Fitness 

in Custody Cases If No Statutory Requirement Exists

Defendant and some of the amici curiae argue that this Court must read into 

the statute an implicit requirement for a fitness determination in order to protect 

parents’ fundamental rights. Even if the presumption in MCL 722.25(1) 

supersedes the presumption in MCL 722.27(1)(c), defendant argues that the court 

must make a preliminary determination whether a natural parent is a fit parent. 

Thus, defendant insists, Troxel prevents courts from allowing a third party to rebut 

the presumption using a best interests analysis because it would insufficiently 

protect the parent’s rights. 

Defendant relies on In re JK in support of her argument. In that case, this 

Court stated that “[a] due-process violation occurs when a state-required breakup 

of a natural family is founded solely on a ‘best interests’ analysis that is not 

supported by the requisite proof of parental unfitness.”38 Defendant urged us to 

examine the Probate Code, the Juvenile Code, and other sections of Michigan law 

to adopt a test for evaluating parental fitness. She claims that, to satisfy 

 

need produce a mere preponderance of the evidence that granting custody to the 

third party is in the best interests of the child. The Oregon Supreme Court upheld 

the statute in the face of a due process challenge based on Troxel. In re 

O’Donnell-Lamont & Lamont, 337 Or 86; 91 P3d 721 (2004). 

38 In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003), citing Quilloin v 

Walcott, 434 US 246, 255; 98 S Ct 549; 54 L Ed 2d 511 (1978). 
21

constitutional scrutiny, such a test must be based on objective factors similar or 

identical to those listed in those statutes. 

We reject defendant’s arguments as beyond the scope of the holdings of 

Troxel and In re JK. As noted previously, Troxel carefully limited the 

constitutional scope of the parental presumption to the extent that a court need 

give decisions by fit custodial parents only a “presumption of validity.”39 Since 

MCL 722.25(1) applies a substantial presumption of the validity of decisions by 

all parents, including fit custodial parents, the constitutional underpinnings of 

Troxel are satisfied.40 

 39 Other jurisdictions whose courts have considered the proper application 

of Troxel in similar legal contexts have also rejected the idea that Troxel mandates 

a determination of parental fitness. Rather, in the context of motions to terminate 

a guardianship or to modify custody in favor of a natural parent, many courts have 

distinguished Troxel because it “was concerned with judicial interference in the 

day-to-day child-rearing decisions of fit, custodial parents. . . . It did not address 

situations in which the parent no longer has custody.” In re MJK, 200 P3d 1106, 

1109 (Colo App, 2008), citing In re Guardianship of LV, 136 Cal App 4th 481, 

493; 38 Cal Rptr 3d 894 (2006); see also In re MNG, 113 SW3d 27, 33 (Tex App, 

2003). 

40 Defendant would have the Court require a demonstration of parental 

unfitness before allowing the parental presumption to be rebutted where no such 

demonstration is required by the statute. That would in effect, give unlimited 

deference to all parenting decisions of parents deemed to be fit. However, “[a] 

determination that an individual has a fundamental right does not foreclose the 

State from ever limiting it.” In re RA, 153 NH 82, 102; 891 A2d 564 (2005). 

Such a determination is not constitutionally mandated. To hold that parental 

unfitness is a mandatory prerequisite to rebutting the parental presumption would 

be inconsistent with the CCA’s emphasis on best interests and lack of reference to 

fitness. 
22

In re JK is distinguishable from the case before us. It was a case involving 

termination of parental rights. Termination cases introduce a significantly 

heightened intrusion upon a parent’s fundamental right to parent because they 

involve an all-or-nothing proposition: whether a parent’s right to be a parent and 

make decisions regarding his or her child’s upbringing is permanently severed. It 

follows logically that under circumstances where the parental interest is most in 

jeopardy, due process concerns are most heightened. 

A custody award to a third party, by contrast, represents a lesser intrusion 

into the family sphere. It does not result in an irrevocable severance of parental 

rights or “‘a unique kind of deprivation’” that forces parents to confront the state.41 

The Legislature has addressed these concerns by requiring the state to prove 

parental unfitness by “clear and convincing evidence” in termination cases. It has 

 

We note that our interpretation of the relevant provisions of the CCA is 

similar to that of the courts in many jurisdictions that also utilize an intermediate 

parental presumption standard. In re Guardianship of Doe, 93 Hawaii at 385 

(“Because the preference for parents established in [Hawaii Rev Stat] 571-46(1) is 

coupled with the best interest standard, we believe our jurisdiction is similar to the 

majority of jurisdictions which adopt a custody presumption in favor of parents 

subject to rebuttal.”); Evans v McTaggart, 88 P3d 1078, 1085 (Alas, 2004) (“We 

thus hold that in order to overcome the parental preference a non-parent must 

show by clear and convincing evidence that . . . the welfare of the child requires 

the child to be in the custody of the non-parent.”). 

41 Santosky, 455 US at 759 (citation omitted). 
23

listed specific statutory factors that it has determined make a parent per se unfit 

and warrant terminating his or her rights to a child.42

The quoted language from In re JK is inapplicable in custody cases such as 

this because it does not involve the “state-required breakup” of a family. In 

termination cases, the natural parent and the state are the parties to the action. To 

protect the parental interest from improper state intrusion, the Legislature requires 

the state to prove by clear and convincing evidence that at least one statutory 

ground for termination exists. Hence, the state must show that the natural parent is 

unfit. 

In custody cases, by contrast, the state does not initiate the proceedings in 

which the natural parent’s rights are at stake. Rather, custody determinations in 

cases such as this merely give “recognition to a family unit already in 

existence . . . .”43 Under such circumstances, “[w]hatever might be required in 

other situations, we cannot say that the State was required in this situation to find 

anything more than that [its decision was] in the ‘best interests of the child.”’44 

 42 MCL 712A.19b(3). 

43 Quilloin, 434 US at 255. 

44 Id. 
24

Finally, we note that a natural parent’s fitness is an intrinsic component of a 

trial court’s evaluation of the best interest factors in MCL 722.23.45 Therefore, 

although we hold that due process does not require a fitness determination where 

the statute does not mandate it, we observe that fitness is an inextricable 

component of the court’s inquiry. 

For example, MCL 722.23(f) to (g) require the trial court to compare the 

“moral fitness” and the “mental and physical health” of the parties. These factors 

reflect the legislative determination that concerns about parental fitness are of 

paramount importance in custody determinations. Therefore, MCL 722.25(1) uses 

the clear and convincing evidence standard to safeguard the constitutionally 

protected fundamental rights of fit custodial parents, as identified in Troxel. MCL 

722.23, on the other hand, simultaneously fulfills the legislative purpose of 

maintaining the focus of the inquiry on the best interests of the child. 

C. Mason Erroneously Interpreted MCL 722.25(1) 

by Adding a Determination of Fitness 

We again note, as a preliminary observation, that MCL 722.25(1) does not 

refer to fitness of the natural parent as a prerequisite for applying the statutory 

presumption in the parent’s favor. MCL 722.25(1) applies to all natural parents 

who are parties in custody disputes with third persons, not merely fit natural 

 45 31 ALR3d 1187, 1196 (noting that the probable reason courts have often 

used the fitness and best interest inquiries interchangeably is because of “the fact 

that both doctrines seek the same basic objective from two different approaches”). 
25

parents. Nothing in the statute explicitly or implicitly suggests that the 

presumption applies only in cases involving a parent adjudged to be a fit parent. 

Rather, we believe that, in enacting the CCA, the Legislature set forth clear best 

interest factors in MCL 722.23 that constitute a de facto evaluation of each 

individual’s fitness to raise a child.46 In doing so, the Legislature rejected the 

amorphous fitness/neglect/abandonment standard outlined in Mason by not 

including any reference to that standard.47 

Mason erred by holding that the statutory presumption in the natural 

parent’s favor applies only to fit parents. This was an improper interpretation of 

Heltzel, Troxel, and the CCA generally. The statutory presumption in MCL 

722.25(1) is “‘a presumption of the strongest order[,]’”48 and one that “does not 

turn solely on the question of fitness.”49 Numerous cases decided since the CCA 

was enacted have agreed: the parental presumption controls unless the third party 

 46 It is difficult to conceive of a scenario where an unfit parent would 

prevail on the best interest factors. 

47 Bahr, 60 Mich App at 359 (“Since the Legislature is presumed to be 

aware of the long-standing judicial precedent affecting an area in which an 

exhaustive codification of the law is undertaken and enacted, we must conclude 

the omission was intentional.”); compare MCL 712A.19b(3) (specifically 

providing for termination of parental rights in cases of neglect or abandonment, 

among other reasons). 

48 Deel, 113 Mich App at 561-562, quoting Bahr, 60 Mich App at 359. 

49 In re Weldon, 397 Mich 225, 276-277; 244 NW2d 827 (1976) (opinion of 

Coleman, J.), overruled on other grounds in Bowie, supra. 
26

shows by clear and convincing evidence that custody with the natural parent is not 

in the best interests of the child.50 

As discussed earlier in this opinion, the parental presumption has some 

constitutional provenance, whereas the custodial environment presumption has 

none. This persuades us that the parental presumption should properly control 

over the established custodial environment presumption. 

Mason held that the parental presumption controls with regard to fit parents 

only because they alone are constitutionally protected. Mason further held that 

unfit parents have the burden “to show, by a preponderance of the evidence, that a 

change in the established custodial environment with the guardian was in the 

child’s best interests.”51

However, Mason and its predecessors created this new standard out of thin 

air.52 In the case before us, the Legislature has provided us with two standards that 

irreconcilably conflict. Rather than resolve the conflict by divining a new 

 50 Henrikson v Gable, 162 Mich App 248, 253; 412 NW2d 702 (1987);

Stevens, 86 Mich App at 267; Bahr, Mich App at 360. 

51 Mason, 267 Mich App at 207. 

52 Glover, 159 Mich App at 147 (“We believe that placing the burden of 

persuasion on the parent challenging an established custodial environment is better 

calculated to elicit the quality of testimony and evidence required by a trial court 

in its determination of the best interest of the child.”). What remains unanswered 

in Glover is on what basis the Court rests this questionable proposition and why, 

in any event, that determination justified the invention of a new standard. See 

Rummelt, supra at 496 (“For the reasons stated therein, we agree with this Court’s 

decision in Glover.”). 
27

standard, as Mason did, we believe that the better course is to decide which of the 

two presumptions controls. 

We are convinced that the parental presumption must control. We are 

persuaded of this (1) by the fact that, whereas the parental presumption has some 

constitutional provenance, the established custodial environment presumption does 

not, (2) by caselaw interpreting the tension between MCL 722.25(1) and MCL 

722.27(1)(c) and (3) by the lack of reference to fitness in the CCA. The Court is 

unwilling to restrict the parental presumption absent clear evidence from the 

Legislature that a restriction was intended. Moreover, the CCA’s notable silence 

regarding fitness, abandonment, or neglect of children suggests these words should 

not be read into the statute. 

The statutory presumption favoring natural parents is not contravened 

merely because the statute provides greater protection for parental rights than 

Troxel mandated as a constitutional matter. Mason’s contrary holding is 

contradictory to the weight traditionally afforded to the parental presumption.53

 53 Mason’s holding altered the burden of proof in that it essentially applied 

the best interests of the child standard to disputes between unfit natural parents 

and third-party custodians, in contravention of the language of MCL 722.25(1). 

Mason, 267 Mich App at 207; see footnote 37 of this opinion. 

Five years after the enactment of the CCA, the Court of Appeals in Bahr, 

supra, rejected the exact argument accepted by Mason. Bahr first noted that, 

before the enactment of the CCA, the best interests of the child were served by 

awarding custody to the natural parent over a third party “unless it could be 

affirmatively proven that the parent was unfit to have custody or had neglected or 

abandoned the child.” Bahr, 60 Mich App at 359. After concluding that the 
28

Because the parental presumption in MCL 722.25(1) satisfies the 

constitutional standards mandated for fit parents, no justification existed for 

Mason to restrict that presumption only to fit parents. Nothing in Troxel can be 

interpreted as precluding states from offering greater protection to the 

fundamental parenting rights of natural parents, regardless of whether the natural 

parents are fit. This rule applies here. 

 

Legislature had deliberately omitted from the CCA any fitness determination in 

such cases, Bahr plainly stated that “[r]ebuttal of the presumption in favor of 

parental custody no longer requires proof of parental unfitness, neglect or 

abandonment.” Id. at 360. 

Numerous Court of Appeals cases decided after Bahr cited it favorably for 

the proposition that, in custody cases between a natural parent and a third party, 

the CCA requires no fitness determination. Stevens, 86 Mich App at 267; 

Henrikson, 162 Mich App at 253 (1987). Oddly, Mason quoted the same language 

from Bahr concerning the lack of need for a fitness determination under the CCA. 

Mason noted that “some jurisdictions, including Michigan, have moved away 

from using the ‘parental unfitness’ or ‘extraordinary circumstances’ standards and 

focus on a placement’s detriment to the child.” Mason, 267 Mich App at 201. 

The Court also noted that the parental presumption in MCL 722.25(1) applies “in 

all custody disputes between parents and an agency or a third person.” Id.

(emphasis in original). Yet immediately after this discussion, Mason ignored its 

own correct statement of law about the statutory presumption in MCL 722.25(1). 

Instead, it denied the parental presumption favoring the natural father on the basis 

of the fact that he was not entitled to the fundamental constitutional right to raise 

his child. Id. at 203. 

We recognize that Mason was not bound by Bahr and its progeny under 

MCR 7.215(J)(1) because it was decided before 1990. However, we refer to Bahr

here because it correctly stated Michigan custody law after the enactment of the 

CCA; Mason did not. We agree with the interpretation of the CCA promulgated 

by the Bahr line of cases. We further agree that the Rummelt line of cases must be 

rejected on the basis of Heltzel’s reasoning and for the reasons discussed herein. 
29

Defendant also argues that Mason’s arbitrary and subjective fitness

standard, and the trial court’s equally subjective application of that standard in this 

case, violated her Fourteenth Amendment54 due process rights. She claims that, 

because the Mason standard does not utilize objective criteria for evaluating 

parental fitness, it lacks procedural protections sufficient to protect her due process 

rights. Given our holding that Mason improperly limited the parental presumption 

in MCL 722.25(1), we find it unnecessary to reach defendant’s constitutional 

argument. 

We conclude that Mason erred by reading a fitness requirement into the 

parental presumption in MCL 722.25(1). The statute is entirely silent on the issue 

of a parent’s fitness.55 Nothing in the statute or the CCA generally56 suggests that 

parental fitness is a prerequisite to entitlement to the parental presumption in MCL 

 54 US Const, Am XIV. 

55 Justice Corrigan acknowledges as much, post at 17, but brushes this 

“bare observation” aside. We disagree with Justice Corrigan’s contention that we 

fail to “adequately consider the various proceedings at which a parent’s fitness 

may be questioned.” Post at 17. To the contrary, we explicitly address such 

proceedings by holding that a natural parent whose parental rights were previously 

terminated or are suspended cannot initiate an action under the CCA. See pp 30-

31 of this opinion. 

56 Only one provision in the CCA refers to parental fitness at all. MCL 

722.27b requires a court considering whether to grant visitation time to 

grandparents to give deference to a fit parent’s decision to deny such time. This 

provision was amended in 2004 in response to our decision in DeRose v DeRose, 

469 Mich 320; 666 NW2d 636 (2003). DeRose held that the former version of 

MCL 722.27b was unconstitutional under Troxel. 
30

722.25(1). Because Mason’s holding was neither constitutionally mandated nor 

consistent with the statute, Mason is hereby overruled. 

D. Additional Concerns 

Justice Corrigan’s concurrence raises a number of issues that we believe 

deserve a response regarding the scope of this opinion. We offer the following 

observations to more explicitly address what this opinion does not do: 

(1) This case deals with custody actions initiated under the CCA involving 

both the parental presumption in MCL 722.25(1) and the established custodial 

environment presumption in MCL 722.27(1)(c). This opinion should not be read 

to extend beyond CCA cases that involve conflicting presumptions or to cases that 

involve parental rights generally but are outside the scope of the CCA. 

(2) This opinion does not create any new rights for parents. The United 

States Supreme Court decisions regarding the constitutional rights of parents 

previously discussed in this opinion provide guidance that informs our analysis. 

This opinion does not magically grant parents additional rights or a constitutional 

presumption in their favor. It does not grant unfit parents constitutional rights to 

their children other than due process rights. 

(3) Parents may not bring actions under the CCA and invoke the parental 

presumption in MCL 722.25(1) as an end run around previous custody 

determinations. We agree with Justice Corrigan’s conclusion that [p]rinciples of 

collateral estoppel generally prevent a party from relitigating an issue already 
31

established in the first proceeding.”57 This Court has long recognized the 

applicability of these principles to probate court orders such as the guardianship 

orders in this case.58 Subsequently, we reiterated that “orders of probate courts 

have the force and effect of judgments and are res judicata of the matters involved 

and cannot be attacked collaterally.”59

Therefore, a parent whose rights have been terminated or suspended cannot 

initiate an action for custody under the CCA because it would amount to a 

collateral attack on the earlier proceedings. A termination order, by its nature, 

finds that custody with the natural parent is not in the child’s best interests. A 

parent’s only recourse in such cases is to appeal the order. A guardianship order, 

similarly, suspends a parent’s parental rights and grants those rights in the child, 

including a right to physical and legal custody, to the guardian under MCL 

700.5215. Thus, defendant in this case would have been collaterally estopped 

from initiating a custody action under the CCA. A parent’s recourse under these 

circumstances is to file a motion to terminate the guardianship.60

 57 Post at 18. 

58 Chapin v Chapin, 229 Mich 515; 201 NW 530 (1924). 

59 In re Ives, 314 Mich 690, 696; 23 NW2d 131(1946). 

60 MCL 700.5208. 
32

In sum, collateral estoppel principles provide a sufficient basis to preclude 

parents from initiating an action for custody under the CCA in order to circumvent 

valid court orders affecting custody.61 

 61 Given this limitation, we reject Justice Corrigan’s assertion that we are 

allowing a court to sweep “findings and admissions [of unfitness] under the rug.” 

Post at 20. Under Justice Corrigan’s approach, a parent who is deemed unfit by a 

court or admits being unfit at any time is never entitled to benefit from the parental 

presumption in MCL 722.25(1). Thus, defendant in this case is not entitled to the 

presumption in her favor because “defendant’s unfitness was clearly established at 

prior proceedings.” Post at 20. Justice Corrigan’s approach is contrary to 

Fletcher’s mandate that a court consider up-to-date information “and any other 

changes in circumstances” when making custody determinations. Fletcher, 447 

Mich at 889. 

Our position is not that Fletcher precludes a circuit court from taking into 

account a past finding of parental unfitness. Post at 19 n 13. Surely, when a court 

evaluates the best interest factors in MCL 722.23, a past finding may still be 

considered. Determinations of past, admitted unfitness are inevitably reconsidered 

when there are ongoing proceedings before the court. Indeed, as Justice Corrigan 

observes, “a parent’s fitness or custody rights are governed by an ongoing 

proceeding—such as the guardianship proceeding here.” Post at 6. We do not 

ourselves opine on whether “defendant’s lack of fitness here diminished.” Post at 

19 n 13. We simply observe that the judge overseeing the guardianship 

proceedings acknowledged such a progression in his increasingly generous 

visitation orders. 

Thus, our main disagreement with Justice Corrigan’s conclusion is the 

extent to which she would make a prior finding of unfitness largely dispositive in 

resolving the conflicting presumptions in the CCA. Here, plaintiffs relied 

primarily on defendant’s past conduct as a basis for opposing her requests for 

increased visitation. Nevertheless, the court overseeing the guardianship 

proceedings repeatedly ruled in defendant’s favor. During those proceedings, 

defendant was fulfilling increasing duties to her children and gaining increased 

visitation time. By complying with what the court required of her, defendant 

properly attempted to overcome the prior finding of unfitness that plaintiffs rely on 

heavily in this custody action. Indeed, had defendant filed a motion to terminate 

the guardianship under MCL 700.5208, her admission of unfitness would have 

been relevant. But the relevance would have been only to the extent that it still 
33

IV. PLAINTIFF’S BURDEN OF PROOF ON REMAND

 Given our conclusion that Mason incorrectly interpreted MCL 722.25(1), 

we remand this case for reevaluation under the correct legal standards.62 On 

remand, the circuit court shall conduct a new best interests hearing in which it 

must consider all relevant, up-to-date information.63 At that hearing, the court 

shall apply MCL 722.25(1) in defendant’s favor. The court shall not grant custody 

to plaintiffs unless plaintiffs demonstrate by clear and convincing evidence that 

custody with defendant does not serve the children’s best interests.64 In order to 

 

affected the best interests of the children. Justice Corrigan states that defendant’s 

current fitness may certainly be given weight during the best interests analysis. 

Post at 20 n 14. Yet she would make the initial admission of unfitness dispositive 

of which presumption controls when an established custodial environment has 

been established and “when a parent’s lack of fitness continues over time.” Post 

at 20 n 13. This case is an apt illustration of how such an analysis begs the 

question. Is the establishment of the established custodial environment due to the 

parent’s unfitness sufficient in itself? It would appear not, because the parent’s 

lack of fitness must also “continue[] over time.” In this case, has defendant’s 

“lack of fitness,” diminished as the probate court found it to be, extended over a 

long enough time? How much time must a parent be unfit, and how unfit must he 

or she be? 

62 Defendant’s remaining arguments claim that the circuit court abused its 

discretion by finding her to be an unfit parent and in evaluating the best interests 

factors in MCL 722.23. Given that we are remanding this case for a new best 

interests hearing, we decline to address these arguments. 

63 Fletcher, 447 Mich at 889. 

64 Under the CCA, the court is not required to award custody to either

party. Thus, if the plaintiffs do not meet the requisite burden of proof in this 

custody action, the court has the authority to keep the guardianship intact without 

awarding custody to either party. That is, on remand, the court could do a number 

of different things, including, but not limited to: (a) “[a]ward the custody of the 
34

make this showing, plaintiffs must prove that “all relevant factors, including the 

existence of an established custodial environment and all legislatively mandated 

best interest concerns within [MCL 722.23], taken together clearly and 

convincingly demonstrate that the child’s best interests require placement with the 

third person.”65

V. CONCLUSION

 We hold that the established custodial environment presumption in MCL 

722.27(1)(c) must yield to the parental presumption in MCL 722.25(1). The 

parental presumption can be rebutted only by clear and convincing evidence that 

custody with the natural parent is not in the best interests of the child. We also 

hold that MCL 722.25(1) satisfies constitutional scrutiny under Troxel. Due 

process does not require a threshold determination of parental fitness in custody 

cases. The Court of Appeals decision in Mason v Simmons is overruled. We 

reverse the judgment of the Court of Appeals and remand this case to the circuit 

court for a new best interests hearing. We do not retain jurisdiction. Finally, 

 

child[ren] to 1 or more of the parties involved or to others,” MCL 722.27(1)(a); (b) 

maintain the status quo; or (c) “[t]ake any other action considered to be 

necessary,” MCL 722.27(1)(e). As noted earlier in this opinion, the defendantmother cannot circumvent the existing guardianship order by initiating a custody 

action. Rather, the only action she may initiate is to terminate the guardianship 

under MCL 700.5208. 

65 Heltzel, 248 Mich App at 27. In this way, the established custodial 

environment is still given weight in the court’s analysis and ultimate decision. 

Therefore, we do not believe this holding “minimize[s] the importance that the 

CCA’s terms place on the established custodial environment.” Post at 16 n 11. 
35

defendant’s motion to preserve the confidentiality of the psychiatric evaluation 

report is granted. The report shall be removed from the copies of the plaintiffs’ 

appendix and placed under seal. 

Marilyn Kelly 

Michael F. Cavanagh 

Robert P. Young, Jr. 

Stephen J. Markman 

Diane M. Hathaway 
S T A T E O F M I C H I G A N 

SUPREME COURT 

ROBERT HUNTER and LORIE HUNTER, 

 Plaintiffs-Appellees, 

v No. 136310 

TAMMY JO HUNTER, 

 Defendant-Appellant, 

and 

JEFFREY HUNTER 

 Defendant. 

BEFORE THE ENTIRE BENCH 

WEAVER, J. (concurring in part and dissenting in part). 

 I join in the reversal of the Court of Appeals result and in the remand of this 

case to the trial court for a new best interests hearing for the reasons stated in the 

following parts of Chief Justice Kelly’s majority opinion and Justice Corrigan’s 

partially concurring and partially dissenting opinion, which are as follows: 

 With respect to Chief Justice Kelly’s majority opinion, I join in parts I, II, 

III(B), and III(D). 

 With respect to Justice Corrigan’s partially concurring and partially 

dissenting opinion, I join in part III, with the exception of footnote 12. 

Elizabeth A. Weaver
S T A T E O F M I C H I G A N 

SUPREME COURT 

ROBERT HUNTER and LORIE HUNTER, 

 Plaintiffs-Appellees, 

v No. 136310 

TAMMY JO HUNTER, 

 Defendant-Appellant, 

and 

JEFFREY HUNTER, 

 Defendant. 

BEFORE THE ENTIRE BENCH 

CORRIGAN, J. (concurring in part and dissenting in part). 

I concur in parts I, II, III(B), and III(D) of the majority opinion. I agree 

with the majority’s conclusion that “fit” parents benefit from a constitutional 

presumption that they will “act in the best interests of their children.” Troxel v 

Granville, 530 US 57, 68; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (plurality 

opinion of O’Connor, J.); see ante at 13-14. I further agree that, when prior court 

proceedings govern child custody—such as child protective proceedings under the 

Juvenile Code, MCL 712A.1 et seq., or, as in this case, guardianship proceedings 

under Part 2 of Article V of the Estates and Protected Individuals Code (EPIC), 

MCL 700.5201 et seq.,—these proceedings generally have preclusive effect and 

the prior court has superior jurisdiction. A parent cannot circumvent these 
2

proceedings by seeking custody under the Child Custody Act (CCA), MCL 722.21 

et seq. See ante at 30-31. 

I do not agree with the majority that the constitutional presumption in favor 

of fit parents imbues the presumption in MCL 722.25(1) of the CCA—which 

applies to all parents, not just fit ones—with heightened constitutional meaning so 

that it always prevails over the mandate concerning established custodial 

environments in MCL 722.27(1)(c). I do agree that constitutional considerations 

require the presumption in § 5(1) to predominate in the case of a fit parent. 

However, when a parent’s lack of fitness has been previously established or 

admitted and a third party has an established custodial environment with the child, 

that parent should not benefit from the presumption in § 5(1). Section 7(1)(c) 

governs instead. 

I. PROCEDURAL BACKGROUND 

 As the majority explains in part, ante at 2-7, this case began in 2002 when 

defendant and her husband—who were drug-addicted, unemployed, and unable to 

care for their four young children—voluntarily relinquished custody of the 

children to plaintiffs. Plaintiffs, who are the children’s aunt and uncle, had already 

been caring for the children intermittently. In November 2002, defendant and her 

husband petitioned the court1

 to appoint plaintiffs as limited guardians for the 

 1

 The majority observes that all proceedings in this case took place in the 

Oakland Circuit Court although there were two separate cases: the probate court 

guardianship case and the circuit court CCA case. It is helpful to note that the 

Family Division of the Oakland Circuit Court and the Oakland County Probate 
3

children, stating: “We are currently in active addiction to crack cocaine and are 

unable to care for our children until we seek treatment.” Accordingly, they 

voluntarily suspended their parental rights and the court established a limited 

guardianship with plaintiffs. Plaintiffs thus gained rights and responsibilities akin 

to those of a parent with regard to the children under MCL 700.5215, which states, 

in most pertinent part: “A minor’s guardian has the powers and responsibilities of 

a parent who is not deprived of custody of the parent’s minor and unemancipated 

child . . . .” See MCL 700.5206(4).2

 

 

Court share jurisdiction over selected matters pursuant to a concurrent jurisdiction 

plan authorized by MCL 600.406. Thus, although probate courts generally have 

jurisdiction over guardianship proceedings and circuit courts have jurisdiction 

over CCA proceedings, all the proceedings between the parties in this case 

effectively took place before the same court. Even absent a concurrent jurisdiction 

plan, the probate judge assigned to a guardianship matter must be assigned to 

serve as the circuit court judge in a subsequent CCA case brought by the 

guardians. MCL 722.26b(5). Here Judge Eugene A. Moore presided over the 

guardianship proceedings but later disqualified himself in the CCA matter. The 

CCA proceedings were ultimately presided over by Judge Linda S. Hallmark. 

Judges Moore and Hallmark are both Oakland County Probate Court judges 

assigned to the Family Division of the Oakland Circuit Court. 

2

 By design, limited guardianships give parents the opportunity to correct 

whatever conditions led them to give up custody of their children and to regain 

custody upon proof of compliance with a limited guardianship placement plan. 

MCL 700.5205(2). A parent has the right to petition to terminate the limited 

guardianship under MCL 700.5208 and, if the parent has “substantially complied” 

with the placement plan, the court must terminate the guardianship. MCL 

700.5209(1). A limited guardian also may not seek full custody of a child under 

the CCA if the parent substantially complies with the placement plan. MCL 

722.26b(2). Before establishing a limited guardianship, however, the parent must 

also be informed that, if he fails without good cause to comply with the placement 

plan, his parental rights may be terminated under the Juvenile Code. MCL 

700.5205(2). 
4

Defendant could have regained custody of the children by substantially 

complying with her placement plan, in which she promised to seek drug treatment 

and provide a drug-free household for the children. Instead, she and her husband 

continued their drug use and became involved in crime. Although they petitioned 

to terminate the limited guardianship in May 2003, the court denied their petition 

and, instead, ordered them to continue drug treatment, verify their employment, 

and maintain more regular visitation with the children. Nonetheless, they returned 

to crime. They were arrested. After being released on bail, they stole a car and 

fled the police. 

In June 2003, plaintiffs petitioned the court to appoint them full guardians.3

 

Plaintiffs cited their fear for the children’s safety and stated that the police advised 

them to seek a full guardianship and suspension of parental visits. The courtappointed guardian ad litem for the children investigated and confirmed that 

defendant and her husband were still using drugs, had lost their jobs, were not 

paying rent, and had fled the police. On June 17, 2003, the court conducted a 

hearing on plaintiffs’ petition. Neither parent appeared and their whereabouts 

were unknown. The court suspended their visitation rights until further order. On 

July 16, 2003, the court appointed plaintiffs full guardians of the children. 

Defendant and her husband were subsequently rearrested and incarcerated. 

Defendant apparently skipped bail again after her second release. She was 

 3

 MCL 700.5204(3) empowers a limited guardian to seek appointment as a 

full guardian as long as the petition is not based merely on the suspension of 

parental rights incident to the limited guardianship petition. 
5

ultimately convicted and imprisoned in August 2004. In July 2005, after her 

release from prison, defendant sought visitation with her children. By this time 

she had not seen them in over two years. The court restored her visitation rights in 

November 2005 and defendant began paying a small amount of child support. 

After several months of successful visits and regular child support payments, the 

court ordered expanded, unsupervised parenting time to begin in May 2006, with 

overnight visits at defendant’s home in Indiana to begin in July 2006. By this 

time, the children had been living with plaintiffs in Michigan for about four years. 

In May 2006, apparently prompted by the order increasing defendant’s 

visitation rights, plaintiffs exercised their rights under MCL 722.26b to seek 

custody under the CCA and to stay the guardianship proceedings. MCL 

722.26b(4). Defendant counterclaimed for custody under the CCA. The court 

employed the now-outdated rubric in Mason v Simmons, 267 Mich App 188; 704 

NW2d 104 (2005), to declare defendant unfit and award custody to plaintiffs.4

II. SUPERIOR JURISDICTION OF PRIOR PROCEEDINGS 

 First, I agree that the guardianship proceedings here precluded defendant 

from separately seeking custody under the CCA. Ante at 30-31. Generally, when 

two courts have concurrent jurisdiction, the first court that acquired jurisdiction 

retains it until the matter is fully resolved. See Schell v Schell, 257 Mich 85, 88; 

 4

 I concur in the majority’s conclusion that Mason improperly created a 

preponderance of the evidence standard “out of thin air,” ante at 26, where the text 

of the CCA includes no such standard. 
6

241 NW 223 (1932).5

 Accordingly, if a parent’s fitness or custody rights are 

governed by an ongoing proceeding—such as the guardianship proceeding here or 

a child protective proceeding under the Juvenile Code—the parent may not 

separately invoke the circuit court’s jurisdiction by filing a simultaneous custody 

action under the CCA. 

Because this holding is a crucial element of the majority opinion, I offer an 

example to illustrate the importance of this jurisdictional rule. Child protective 

proceedings under the Juvenile Code are designed to protect children from abuse 

and neglect—often by temporarily removing them from their parents’ custody 

under emergency conditions—while aiding parents to rectify unfit conditions and 

regain custody of their children. The purposes of these proceedings would be 

 5

 The longstanding rule concerning concurrent jurisdiction was aptly 

described in Schell where, as here, the circuit court was called upon to decide a 

custody issue. Significantly, in Schell, prior probate court proceedings concerning 

the child appear to have been abandoned and effectively closed. Accordingly, this 

Court held: 

As stated by Mr. Justice COOLEY in [Maclean] v. Wayne 

Circuit Judge, 52 Mich. 257 [259; 18 NW 396]: 

“It is a familiar principle that when a court of competent 

jurisdiction has become possessed of a case, its authority continues, 

subject only to appellate authority, until the matter is finally and 

completely disposed of; and no court of co-ordinate authority is at 

liberty to interfere with its action.” 

The circuit court and the probate court, juvenile division, had 

concurrent jurisdiction. The former court having acquired it first, 

retained it. [Schell, supra, 257 Mich 88 (emphasis added).] 
7

nullified if a parent could avoid them by regaining custody in a separate 

proceeding under the CCA. 

The Juvenile Code protects children who, among other things, are subjected 

to abuse, neglect, or unfit living conditions. MCL 712A.2(b).6

 The code 

empowers the Department of Human Services (DHS) to petition for temporary 

removal of a child from his parent’s home for these reasons. The court may 

authorize the petition “upon a showing of probable cause that 1 or more of the 

allegations in the petition are true and fall within the provisions of section 

2(b) . . . .” MCL 712A.13a(2). If the court orders the child’s removal from the 

parent’s custody and orders the child into court or state custody, a process begins 

during which the DHS works with the parent, if possible, to restore custody with 

the parent.7

 As I will explain further, this process is statutorily designed to take up 

 6

 The most relevant provisions of MCL 712A.2(b) confer court jurisdiction 

over a child: 

(1) Whose parent or other person legally responsible for the 

care and maintenance of the juvenile, when able to do so, neglects or 

refuses to provide proper or necessary support, education, medical, 

surgical, or other care necessary for his or her health or morals, who 

is subject to a substantial risk of harm to his or her mental wellbeing, who is abandoned by his or her parents, guardian, or other 

custodian, or who is without proper custody or guardianship. . . . 

* * * 

 (2) [Or, w]hose home or environment, by reason of neglect, 

cruelty, drunkenness, criminality, or depravity on the part of a 

parent, guardian, nonparent adult, or other custodian, is an unfit 

place for the juvenile to live in.

7

 Various protections address the parent’s due process rights throughout the 

proceedings, including rights to notice, to participate in all proceedings, see MCL 
8

to one year. See MCL 712A.19a(1). Within 30 days of the child’s removal, and 

every 90 days thereafter, the DHS must provide service plans detailing its efforts 

and the services provided to prevent removal or to rectify the conditions that 

caused removal, as well as the efforts to be made and services to be offered to 

facilitate the child’s return to his parent, if appropriate. MCL 712A.18f. The 

court generally reviews the case within 182 days of the child’s removal and every 

91 days thereafter. MCL 712A.19(3). At each review hearing, the court must 

evaluate the parent’s compliance with the service plan, MCL 712A.19(6) and (7), 

and may order additional services or actions. MCL 712A.19(7)(a). 

If a child remains outside his home, the court must conduct a permanency 

planning hearing within one year of the child’s removal. MCL 712A.19a(1). At 

that hearing, if the court determines that the “return of the child to his or her parent 

would not cause a substantial risk of harm to the child’s life, physical health, or 

mental well-being, the court shall order the child returned to his or her parent.” 

MCL 712A.19a(5). If the court determines that the parent poses a substantial risk 

to the child, it may order the DHS to initiate proceedings to terminate parental 

rights. MCL 712A.19a(6). If termination is not in the child’s best interests, the 

court may also consider alternative placement plans, including a guardianship. 

MCL 712A.19a(7). Crucially, the burden of proof is elevated to clear and 

 

712A.19(5)(c), MCL 712A.19a(4)(c), and MCL 712A.19b(2)(c), and to an 

attorney at each stage of the proceedings, MCL 712A.17c(4) and (5). 
9

convincing evidence only at this final stage, the termination of parental rights 

proceeding. MCL 712A.19b(3). 

Because of the different evidentiary standards in the CCA and the Juvenile 

Code, a parent could subvert child protective proceedings if the Schell rule did not 

mandate superior jurisdiction in the child protective proceedings. This is because, 

as noted, the requisite conditions for removal of a child from his parent’s custody 

under MCL 712A.2(b) of the Juvenile Code must be proved by “a showing of 

probable cause,” MCL 712A.13a(2). But, particularly under the majority’s 

interpretation of the CCA, the DHS or a third party custodian can prevent a parent 

from regaining custody under the CCA only by rebutting the parental presumption 

by clear and convincing evidence. MCL 722.25(1). Because the CCA creates a 

higher burden for a third party seeking custody, the parent could regain custody 

under the CCA; while the initial conditions warranting emergency removal may 

have been supported by probable cause, the DHS may not yet have gathered 

enough evidence to meet the heightened clear and convincing evidence standard 

of the statutory presumption in MCL 722.25(1), as would be necessary to prevent 

the parent from immediately regaining custody. Thus, if the parent could seek 

custody under the CCA, the Legislature’s carefully crafted child protective 

process—which both protects children and ultimately benefits willing parents—

could be nullified. 

A related problem involving guardianships would arise if a parent could 

invoke the court’s jurisdiction under the CCA although the parent’s rights were 
10

eligible for termination under the Juvenile Code. Indeed, although the court may 

conclude that a child should not be returned to his parent because the parent poses 

an ongoing substantial risk of harm, the court may place the child with a 

permanent guardian in lieu of terminating the parent’s rights. MCL 712A.19a(6) 

and (7)(c). That guardianship may continue until the child is emancipated, MCL 

712A.19a(7)(c), and the guardian gains all the traditional parent-like rights and 

duties inherent in a guardianship established under the EPIC. MCL 712A.19a(8). 

If the natural parent could nonetheless obtain custody under the CCA, the 

purposes and terms of these pre-termination guardianships would be obviated. 

Particularly under the majority’s rule, the parent could file under the CCA to shift 

the burden to the guardian, thereby requiring the guardian to prove by clear and 

convincing evidence that placement with the parent is not in the child’s best 

interests. The court’s determination during the child protective proceedings that 

the parent posed a significant harm to his child would become irrelevant and the 

guardian would be forced to litigate in defense of his appointment. In addition to 

subverting the statutory scheme in favor of pre-termination guardianships, this 

result likely would cause voluntary guardians to decide against accepting 

guardianship appointments.8

In sum, important, practical reasons undergird the Schell rule and the 

principles of collateral estoppel addressed by the majority. Once a court attains 

 8

 Indeed, the EPIC’s guardianship schemes could be effectively nullified, 

generally, if a parent could avoid ongoing guardianship proceedings by simply 

filing for custody under the CCA. 
11

jurisdiction of a child’s custody under the Juvenile Code or the EPIC, as the first 

court to attain jurisdiction over these matters, it retains jurisdiction until the 

proceeding is closed. Schell, supra, 257 Mich at 88. A parent cannot simply file 

separately for custody under the CCA and regain custody by invoking the parental 

presumption. Permitting a parent to do so would undermine the very purposes of 

the other statutory schemes addressing custody and child welfare, not to mention 

the havoc and confusion in courts attempting to properly protect children and 

adjudicate parental rights under the correct statutes. 

Finally, the CCA itself confirms this result by providing a single, explicit 

exception to the normal application of the Schell rule. MCL 722.26b, which 

grants a guardian standing to seek custody under the CCA, provides the only 

apparent context in which a CCA action may override decisions of another court 

with ongoing jurisdiction over the parties’ rights to the children.9

 MCL 

722.26b(4) explicitly states that, when a guardian seeks custody, “guardianship 

proceedings concerning that child in the probate court are stayed until disposition 

of the child custody action” and permits an ensuing circuit court order to 

supersede probate court orders concerning the guardianship of the child. The 

CCA does not, in turn, permit a parent with the limited rights inherent in 

guardianship proceedings to sue for custody or stay the guardianship proceedings. 

 9

 To be clear, although the CCA generally cannot be used to override other 

proceedings, the CCA is often properly employed incident to other proceedings 

when appropriate. For example, custody actions may “arise[] incidentally from 

another action in the circuit court or an order or judgment of the circuit court,” 

MCL 722.27(1), including a divorce action. 
12

Rather, as the majority notes, a parent’s recourse would lie in his explicit right to 

petition the probate court to terminate the guardianship under MCL 700.5208. 

III. SECTIONS 5(1) AND 7(1)(c) OF THE CHILD CUSTODY ACT 

Although I agree with the majority on the point just discussed, I disagree 

with the majority’s resolution of the apparent conflict between MCL 722.25(1) 

and MCL 722.27(1)(c) as it applies here, where the guardians invoked MCL 

722.26b. I certainly agree with the majority, ante at 9, that 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.” Santosky v Kramer, 455 US 

745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). And thus, to satisfy 

constitutional due process standards, the state “must provide the parents with 

fundamentally fair procedures.” Id. at 754; and see ante at 9. But, when a 

parent’s unfitness has been established, as it was here, fundamentally fair 

procedures do not require the court to give that parent the full benefit of the 

parental presumption. Rather, a parent’s rights to a child are limited when he has 

failed in his duties to that child. In the majority’s own words, neither Troxel nor 

the majority opinion “grant[s] unfit parents constitutional rights to their children 

other than due process rights.” Ante at 30 (emphasis added). 

Thus, the presumption that a parent will act in his child’s best interests is a 

conditional presumption that applies only “so long as a parent adequately cares 

for” his child. Troxel, supra, 530 US 68 (O’Connor, J.). Indeed, the parental right 
13

derives from a parent’s ‘high duty’ to care for his children. Id. (citation omitted).10

Accordingly, when a parent fails to care adequately for his child—and particularly 

 10 In accord, historically this Court has recognized that parental rights do 

not derive from mere biology or exist independently from parental duties. As we 

explained in In re Gould, 174 Mich 663, 669-670; 140 NW 1013 (1913): 

The law recognizes the rights of the father because it 

recognizes the natural duties and obligations of the father. The 

father’s right to and authority over his child are secure and inviolable 

so long as he properly discharges the correlative duties. 

But the absolute power of the father over his infant children, 

to treat them as property and dispose of them as he sees fit because 

they are his, which was once recognized under the Roman law of 

patria potestas and in the codes of early nations, no longer obtains. 

Paternal authority is subordinate to the supreme power of the State. 

Every child born in the United States has, from the time it comes into 

existence, a birthright of citizenship which vests it with rights and 

privileges, entitling it to governmental protection— 

“And such government is obligated by its duty of protection, 

to consult the welfare, comfort, and interests of such child in 

regulating its custody during the period of its minority.” Mercein v. 

People, 25 Wend. (N. Y.) 64 (35 Am. Dec. 653). 

The power of parental control, though recognized as a 

natural right and protected when properly exercised, is by no means 

an inalienable one. When the “right of custody” is involved 

between respective claimants for a child, the courts, though in the 

first instance recognizing prima facie rights of relationship, in the 

final test are not strictly bound by demands founded upon purely 

technical claims or naked legal rights, but may and should, in 

making the award, be governed by the paramount consideration of 

what is really demanded by the best interests of the child. [Emphasis 

added.] 

Thus Gould emphasized that a child’s rights to be protected from abuse and 

neglect inform and limit a parent’s rights. As we reiterated 50 years later in 

Herbstman v Shiftan, 363 Mich 64, 67-68; 108 NW2d 869 (1961): 

A child also has rights, which include the right to proper and 

necessary support; education as required by law; medical, surgical 
14

when third parties carry out the parent’s high duty in his stead—the automatic 

presumption in favor of the parent no longer strictly applies. Therefore, although 

fit parents benefit from a constitutional presumption that they will “act in the best 

interests of their children,” Troxel, supra, 530 US 68, ante at 13-14 the 

constitutional presumption in favor of fit parents does not imbue the presumption 

in § 5(1) of the CCA with heightened constitutional meaning so that it always 

prevails over the mandate concerning established custodial environments in § 

7(1)(c) without regard to a parent’s fitness. 

MCL 722.25(1) states that if a 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.” But the 

powers of the circuit court in any action under the CCA are also governed by 

MCL 722.27, which circumscribes the orders a court may enter regarding a 

complaint for custody. MCL 722.27(1) states, in pertinent part: 

If a child custody dispute has been submitted to the circuit 

court as an original action under this act or has arisen incidentally 

 

and other care necessary for his health, morals, or well-being; the 

right to proper custody by his parents, guardian, or other custodian; 

and the right to live in a suitable place free from neglect, cruelty, 

drunkenness, criminality, or depravity on the part of his parents, 

guardian, or other custodian. It is only when these rights of the child 

are violated by the parents themselves that the child becomes subject 

to judicial control. A parent having violated the rights of a child 

forfeits his right to the custody, control and upbringing of that child; 

and when the safety and best interests of the child demand it, the 

rights of the child must be protected by the court. [Emphasis added.] 
15

from another action in the circuit court or an order or judgment of 

the circuit court, for the best interests of the child the court may do 1 

or more of the following: 

(a) Award the custody of the child to 1 or more of the parties 

involved or to others and provide for payment of support for the 

child, until the child reaches 18 years of age. . . . 

(b) Provide for reasonable parenting time of the child by the 

parties involved, by the maternal or paternal grandparents, or by 

others, by general or specific terms and conditions. . . . 

(c) Modify or amend its previous judgments or orders for 

proper cause shown or because of change of circumstances . . . . The 

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. The custodial 

environment of a child is established if over an appreciable time the 

child naturally looks to the custodian in that environment for 

guidance, discipline, the necessities of life, and parental comfort. 

The age of the child, the physical environment, and the inclination of 

the custodian and the child as to permanency of the relationship shall 

also be considered. . . . 

(d) Utilize a guardian ad litem or the community resources in 

behavioral sciences and other professions in the investigation and 

study of custody disputes and consider their recommendations for 

the resolution of the disputes. 

(e) Take any other action considered to be necessary in a 

particular child custody dispute. [MCL 722.27(1).] 

Subsection 7(1)(c) clearly mandates that the 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 
16

evidence that it is in the best interest of the child.”11 (Emphasis added.) Thus, § 

(7)(1)(c) expressly deprives the court of the power to change the established 

custodial environment absent the requisite showing by clear and convincing 

evidence that such a change is in the child’s best interest.12 Yet the majority 

 11 The majority opines that “no constitutional protections for third persons 

underlie the established custodial environment presumption in MCL 

722.27(1)(c).” Ante at 15. This may be so. But we should not minimize the 

importance that the CCA’s terms place on the established custodial environment, 

which serves a child’s needs. Indeed, an “established custodial environment” is 

defined in terms similar to those used to describe a child’s “rights and privileges 

entitling it to governmental protection,” which obligate the government “to consult 

the welfare, comfort, and interests of such child in regulating its custody during 

the period of its minority.” Gould, supra, 174 Mich at 670 (internal quotation 

marks and citation omitted). An established custodial environment exists under § 

7(1)(c) “if over an appreciable time the child naturally looks to the custodian in 

that environment for guidance, discipline, the necessities of life, and parental 

comfort.” Compare the rights of a child listed by Herbstman, supra, 363 Mich at 

67: “proper and necessary support; education as required by law; medical, 

surgical, and other care necessary for his health, morals, or well-being; the right to 

proper custody by his parents, guardian, or other custodian . . . .” 

12 My conclusions here stem from my willingness to agree, for purposes of 

this analysis, with the majority’s assumption that MCL 722.25(1) and MCL 

722.27(1)(c) “irreconcilably conflict” when a parent seeks custody from a third 

party with an established custodial environment, ante at 26; both provisions appear 

to mandate action from the court, stating respectively that “the court shall presume 

that the best interests of the child are served by awarding custody to the parent,” § 

5(1), and that “[t]he court shall not . . . 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,” § 7(1)(c). (Emphasis added.) Yet because § 

7 broadly circumscribes the circuit court’s power in all cases under the CCA, I 

would be more inclined to hold that the prohibition on changing an established 

custodial environment in § 7(1)(c) clearly controls, as a textual matter, whenever 

the terms of both § 5(1) and § 7(1)(c) apply in a given case. I do not agree with 

the majority that, through § 5(1), the Legislature clearly intended to “offer[] 

greater protection [than is required by the constitution] to the fundamental 

parenting rights of natural parents, regardless of whether the natural parents are 

fit.” Ante at 28. Nevertheless, my observations concerning the textual dominance 

of 7(1)(c) are largely inapposite to my overall conclusion; I am persuaded that, if 
17

directs circuit courts to ignore this mandate in all cases where any natural parent—

except one whose parental rights were previously terminated or suspended, ante at 

31—seeks custody from a third party with an established custodial environment. 

But in light of the strong mandate expressed in § 7(1)(c), and because the 

constitutional parental presumption applies only to fit parents, I would hold that 

the presumption in § 5(1) prevails over the mandate in § 7(1)(c) by necessity only 

when a fit parent seeks custody from a third person with an established custodial 

environment. Where an unfit parent is concerned, no statutory or constitutional 

reason exists to simply ignore § 7(1)(c) if a third person has an established 

custodial environment. 

Further, because the constitutional parental presumption applies only to fit 

parents, a parent’s fitness remains relevant. I acknowledge that the CCA does not 

refer to fitness, see ante at 27. But this bare observation does not adequately 

consider the various proceedings at which a parent’s fitness may be questioned—

indeed, it does not consider the very proceedings that likely led to a custodial 

environment being established with a third party custodian in the first place. 

Troxel equated a fit parent with one who “adequately cares for his or her 

children.” Troxel, supra, 530 US 68 (O’Connor, J.). It illustrated the presumption 

in favor of fit parents as “a presumption that parents possess what a child lacks in 

maturity, experience, and capacity for judgment required for making life’s difficult 

 

a fit parent’s custody interests are opposed to those of a third party with an 

established custodial environment, the parent should benefit from a parental 

presumption as a matter of constitutional right. 
18

decisions.” Id. at 68 (internal quotation marks and citation omitted). Various 

proceedings call upon courts to make findings, or call upon parents to make 

admissions, counter to these presumptions in order to fulfill the state’s duties to 

protect its children. The child protective proceedings described above and 

guardianship proceedings like this case are good examples of proceedings that, by 

their nature, may establish a parent’s unfitness. Principles of collateral estoppel 

generally prevent a party from relitigating an issue already established in a prior 

proceeding. See Storey v Meijer, Inc, 431 Mich 368, 373 n 3; 429 NW2d 169 

(1988). Indeed, as the majority observes, this Court has “long recognized” the 

applicability of collateral estoppel, including to “probate courts orders such as the 

guardianship orders in this case.” Ante at 31, citing Chapin v Chapin, 229 Mich 

515; 201 NW 530 (1924). Such orders “are res judicata of the matters involved 

and cannot be attacked collaterally.” In re Ives, 314 Mich 690, 696; 23 NW2d 131 

(1946). Further, permitting a parent to avoid past findings or admissions of 

unfitness and nonetheless gain a constitutional advantage despite unfitness clearly 

runs the risk of endangering the child and compromising state laws aimed at 

upholding the state’s duties to its child citizens. Most significant to our purposes, 

if a parent’s lack of fitness has been established, there is no longer a constitutional 

reason to ignore the mandate in MCL 722.27(1)(c) in favor of MCL 722.25(1). 

Accordingly, I conclude that in cases where a parent’s lack of fitness was either 
19

determined or admitted in a prior proceeding, the parent cannot later claim fitness 

and benefit from the presumption in § 5(1) in a proceeding under the CCA.13 

 13 The majority states that my approach is contrary to Fletcher v Fletcher,

447 Mich 871, 889; 526 NW2d 889 (1994), which required the trial court on 

remand to consider “up-to-date information” and “any other changes in 

circumstances” when awarding custody. See ante at 32 n 61. I have no objection 

to the Fletcher Court’s requirement, which applied to the trial court’s 

consideration of the best interests factors in MCL 722.23. But I disagree with the 

majority’s assertion that Fletcher precludes a trial court from taking into account a 

past finding of unfitness when determining whether the presumption in MCL 

722.25(1) must prevail over the mandate in MCL 722.27(1)(c) as a constitutional 

matter. Fletcher addressed only the best interests determination on remand in light 

of the fact that circumstances may change during the appellate process. See 

Fletcher, supra 447 Mich at 888-889. Indeed, it expressly prohibited 

reconsideration of the threshold question whether any party had an established 

custodial environment for purposes of applying § 7(1)(c). Id. at 889 n 10 (“We do 

not suggest that the events which have taken place during the appellate process 

give rise to an ‘established custodial environment’ that . . . alters the burden of 

proof in favor of the party who has enjoyed custody during the appeal.”). In no 

way did Fletcher suggest that the threshold issue of a parent’s past, admitted 

unfitness should be reconsidered over time in order to alter the burden of proof. 

The majority further states that I would “make the initial admission of 

unfitness dispositive” although defendant “was fulfilling increasing duties to her 

children and gaining increased visitation time.” Ante at 32 n 61. First, I would 

note that—just as the majority asserts that the established custodial environment 

may be given weight when the court considers the best interests factors, ante at 34 

n 65—defendant’s current, apparently increasing ability to care for her children 

should certainly be given weight during this process. Second, to the extent that the 

majority suggests that a past admission of unfitness should not be dispositive 

because defendant’s lack of fitness here diminished and should be reconsidered 

over time, I note that defendant admitted her unfitness in 2002, had no contact 

with her children at all for approximately two years during 2003-2005, was 

released from prison in July 2005 and had been back in contact with her children 

for only about six months when plaintiffs filed their complaint for custody in May 

2006. By this time, the children had been living with plaintiffs in Michigan for 

about four years. Accordingly, I emphasize my conclusion that a past admission 

of unfitness is not dispositive in itself. Rather, by its terms the mandate in § 

7(1)(c)—which circumscribes the court’s power to “[m]odify or amend its 

previous judgments or orders” and specifically to “modify or amend its previous 

judgments or orders or issue a new order so as to change the established custodial 
20

Here, defendant and her husband admitted unfitness in 2002 when they 

sought the limited guardianship because they were jobless, addicted to crack, and 

unable to care for their children. They could have regained custody of the children 

by substantially complying with their placement plan. Instead, they relapsed, 

continued their involvement with crime, and failed to appear at the hearing on 

plaintiffs’ petition to establish a full guardianship.14 Under these circumstances, 

defendant’s unfitness was clearly established at prior proceedings. Indeed, 

defendant admitted her unfitness and willfully forewent her statutorily granted 

right to regain custody despite the admission. Defendant further could have 

challenged the results of the guardianship proceedings by appealing, but she did 

not do so. The court should not now be directed to sweep such findings and 

admissions under the rug by applying a constitutional presumption in favor of fit 

 

environment”—controls only when a prior admission of unfitness led to additional 

circumstances and court orders creating an established custodial environment with 

a third party. Indeed, by definition, the prohibition on changing the established 

custodial environment in § 7(1)(c) applies only when a parent’s lack of fitness 

continues over time so that third parties take on the parental role and establish a 

custodial environment—such an environment is established only if “over an 

appreciable time the child naturally looks to the custodian in that environment for 

guidance, discipline, the necessities of life, and parental comfort.” MCL 

722.7(1)(c) (emphasis added). 

14 Plaintiffs aptly observe that defendant’s lack of fitness was the direct 

cause of their appointment as guardians—a status that bestows rights akin to 

parental rights. MCL 700.5215. They further note that defendant’s absence from 

her children’s lives thus created the very established custodial environment with 

plaintiffs that defendant now seeks to delegitimize by applying the constitutional 

presumption in favor of fit parents. 
21

parents in an action involving the very people who cared for defendant’s children 

in the face of her parenting failures. For these reasons I conclude that when, as 

here, a third party establishes a custodial environment after proof of a parent’s 

unfitness, the procedure for changing an established custodial environment 

mandated by MCL 722.27(1)(c) controls. 

IV. CONCLUSION 

 In conclusion, I agree with the majority that a fit parent who properly seeks 

custody under the CCA benefits from the parental presumption in MCL 722.25(1). 

But, contrary to the majority, I would conclude that, where a parent’s lack of 

fitness is established, MCL 722.27(1)(c) controls if a third party has an established 

custodial environment for the children. 

Further, if parental or custody rights are governed by other proceedings, a 

parent is precluded from using the CCA as an end run around such proceedings; 

rather, the first court to gain jurisdiction over these matters retains jurisdiction. 

The CCA provides a single exception to this rule in MCL 722.26b, which 

plaintiffs properly invoked in this case and which permits guardians to seek 

custody although guardianship proceedings are ongoing. But, finally, I agree with 

the majority that even when a custody action is properly filed under § 6b as here, 

the circuit court is not bound to award custody to any party. Instead, it has broad 

discretion to act “for the best interests of the child . . . .” MCL 722.27(1). 

Accordingly, the court in its discretion may dismiss plaintiffs’ custody action in 

light of plaintiffs’ apparent attempt to subvert the ongoing guardianship 
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proceedings in which defendant was fulfilling increasing duties to her children and 

gaining increased visitation time. 

Maura D. Corrigan