FILED JULY 31, 2009

ROBERT HUNTER a nd 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 ra ising 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 a pplied 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. Hathaway2 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 th e Court of Appeals and remand the case to the circuit court for further proceedings.

I. F ACTS AND P ROCEDURAL H ISTORY In 2002, Tammy Hunter and her husband , Jeff Hunter, lived in Indiana with their four young children, who ranged in ag e from two to nine years. There is no

evidence in the record that Indiana child welfare author ities ever investigated or sought jurisdiction over the family. Tammy and Jeff began using crack cocaine. In August 2002, Tammy left her four chil dren 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 successf ully overcome their drug addictions. A short time later, however, plaintiffs learned that Tammy and Jeff had relapsed. Plaintiffs again drove to Indiana and br ought 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 lim ited guardianship with plaintiffs. Seven months later, in May 2003, Tammy and Jeff petitioned the Oakland Circuit Court to terminate plaintiffs’ guard ianship. 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 gua rdianship and appointed plaintiffs full guardians of the children. Tammy’s life further deteriorated wh en she was incarcerated in August

2004. She was released fro m prison in April 2005 and, three months later, filed a petition in the Oakland Circuit Court seekin g an opportunity to visit her children. 4 The circuit court required he r to verify her drug-free st atus since her release from prison. She was required to undergo bi weekly drug testing, attend Alcoholics

4 Tammy obtained a divorce from Jeff while he was incarcerated in Indiana. Jeff has been incarcerated on and off sinc e 2003 and was never a party to this appeal.4 Anonymous or Narcotics Anonymous mee tings, 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 th at Tammy’s visitation had gone well and that she regularly paid ch ild support. The circuit court expanded her parenting time, awarding her unsupervis ed weekend visits in Michigan during May and June 2006 and overni ght, unsupervised visits in Indiana beginning in July 2006. The court also continued her child suppor t obligation and ordered her to submit to weekly drug scre ens. She again met each of the court’s requirements. By the time this case was filed, Ta mmy was having monthly unsupervised

weekend visits with the children at her Indiana home and in Michigan. In May 2006, plaintiffs filed this ac tion seeking legal and physical custody

of the children. The parties stipulated that the Frie nd of the Court (FOC) referee would make a preliminary finding regard ing 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 ch ildren had an established custodial environment with plaintiffs and that Ta mmy was an unfit parent. Tammy filed objections to the referee’s report and reques ted a hearing de novo. Ten days after receiving the referee’s report, the circuit co urt entered another order. It required Tammy to attend parenting classes, submit to random drug screens, participate in5 substance abuse counseling, and attend family counseling sessions with her children and her live-in boyfriend. Tammy ag ain complied with all requirements. At the evidentiary hearing, severa l witnesses testified regarding the

circumstances in 2002 and 2003 that le d to the establishment of plaintiffs’ guardianship of the children. Tammy te stified that she had remained drug-free since August 2004 and supp lied the court with a comp endium of negative drug screen reports. She also testified that she earned $10.50 an hour as an assistant sales manager and lived with her boyfrien d in a four-bedroom home in Indiana. A family therapist who had eval uated the children pursuant to a circuit court order reported that the children were “attached ” to Tammy and “hav e 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 th e 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 a nd have these children go to foster care the family took over and stepped in a nd provided a stable and loving home for these four kids, it doesn ’t happen very often and it’s wonderful when that does happen an d I think, again, these kids are doing as well as they are today be cause of that intervention. And mom has made progress but there are still numerous questions and numerous issues. These kids have never really liv ed 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 gr ueling, day to day, sort of parenting and be tested that way so we can make some determination about what the curre nt situation is. And mom lives with a man, who seems like a very nice individual also, a hard working pers on, but they live in an out of wedlock relationship and exposing th e 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 th at he will leave her his assets should he pass away. But the truth of the matter is sh e 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 t ear 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 main tain 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. Mc Connell 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 interest s hearing. After considering the testimony, the court agreed with the refer ee’s findings. The court determined that

9 of the 12 best interest factors 5 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 re asonable preference of the children, 7 in reaching its decision. The court held that it wa s in the children’s best interests to remain with plai ntiffs and granted them phys ical and legal custody. It also ordered Tammy to pay child support an d $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 major ity 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 de termination because the circuit court’s decision regarding pa rental fitness was unconstitutional and against the great weight of the evidence. We granted leave to appeal. 9

II. L EGAL B ACKGROUND We review de novo questions of law involving statutory interpretation and questions concerning the c onstitutionality of a statute. 10 Findings of fact in child custody cases are reviewed under the gr eat 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 MC L 722.27(1)(c) and (2) do the federal constitutional standards concerning the fundamental rights of pare nts to raise their children control our answer to the first question. A. United States Supreme Court Precedent The importance of the family and th e “essential,” “basic,” and “precious” right of parents to raise their childre n 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 eas ily relinquished. “The fundamental liberty intere st of natural parents in the care, custody, and management of their child does not evapor ate simply because they have not been model parents or have lost temporary custody of their child to the State.” 13 Therefore, to satisfy cons titutional due process standard s, the state “must provide the parents with fundamen tally fair procedures.” 14 In 2000, in the case of Troxel v Granville , 15 the United States Supreme Court delivered its most relevant pronounce ment in this area of the law. In a plurality opinion, the Court struck down the state of Washington’s “b reathtakingly

broad” visitation statute as an unconstitutional infri ngement 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 th is interest “is perhap s 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 be st interest of the child.’” 17 B. Applicable Michigan Law In 1970, the Michigan Legislature enac ted the CCA. Among its provisions are statutory presumptions that apply in custody disputes. The presumptions pertinent to this case are found in MC L 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 disput e is between the parent or parents and an agency or a third person, th e 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 cont rast, provides in part: If a child custody dispute ha s been submitted to the circuit court as an original action under th is act or has arisen incidentally from another action in the circuit c ourt or an order or judgment of the circuit court, for the best intere sts 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 orde rs or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing ev idence that it is in the best interest of the child. The cust odial environment of a child is

17 Id. at 67.11 established if over an appreciable time the child na turally looks to the custodian in that environmen t for guidance, discipline, the necessities of life, and parental co mfort. The age of the child, the physical environment, and the inc lination of the cu stodian and the child as to permanency of the relationship shall also be considered. Thus, a conflict arises between these se ctions when a court hears a custody dispute between a child’s natural parent a nd 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. Pa nels 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 presump tion 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 pre ponderance of the evid ence that the best interests of the child are served by placement with the parent), with Deel v Deel , 113 Mich App 556; 31 7 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 4 30 (1975) (holding that the parental presumption contro ls unless the third party shows by clear and convincing evidence that custody with the natural pare nt is not in the be st 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 noncustodi al natural parent and a th ird-person custodian, the12 Heltzel further concluded that it was impera tive that trial courts balance the two significant interests. First, the lo wer courts must adequately safeguard the

fundamental constitutional natu re 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 th e child’s natural parent only when the third person proves that all relevant fact ors, including the existence of an established custodial environment a nd all legislatively mandated best interest concerns within [MCL 72 2.23], 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 Cour t of Appeals case had addressed the applicability of Heltzel in cases in which a natu ral 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 natu ral parent, and thus arrive on equal footing with the parent with respect to their claim of cu stody 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 lib erty 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 de nying the natural parent the benefit of the statutory presumption in MCL 722.25(1).

III. T HE CCA’ S P ROTECTIONS Custody cases involving natural parent s inherently implicate the parents’ fundamental liberty interest in the care, custody, and management of their

children. 23 Thus, they implicate the constitu tional protections identified in the United States Supreme Court cases previous ly discussed. The threshold question

this Court must address is whether the re levant provisions of the CCA adequately protect a fit parent’s fundamental right s under existing United States Supreme Court precedent.

A. Under Troxel , MCL 722.25(1) Must Control Ov er 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 statut e was flawed because it afforded no deference to a fit parent’s decision abou t 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 overturni ng decisions by a fit custodial parent based “solely on the judge’s determ ination of the child’s best interests.” 26 Rather, it held that courts must give some “special weight” to the parents’

determination of their ch ildren’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 f it parents act in the best interests of their children. Hence, it was constitutionally in firm. Using that reasoning, Troxel established that a natural parent’s fitness to parent is the touchstone for invoking the constitutional protections of fundamental parental right s. 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 theref ore be considered specifically in the context of a fit parent to determine wh ether 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 fundamen tal constitutional right s, 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 decisi on to pursue custody because it is inherently central to the pa rent’s control over his or her child. By contrast, unlike the parental presumption in MCL 722.25(1), no

constitutional protections for third persons unde rlie 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 establishe d 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 ch ild either resides with or ha s resided with that party”); In re Clausen , 442 Mich 648, 682-684 ; 502 NW2d 649 (1993) (re jecting the argument that United States Supreme Court precede nt established a federal constitutional16 Finally, we note that the vast majority of Michigan case s interpreting the CCA support the conclusion that these pres umptions 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 pr esumptions conflict, the presumption in MCL 722.27(1)(c) must yield to th e presumption in MCL 722.25(1). 32

right of a third party to s eek custody of a child with whom the third party has an established custodial relationship). We note that plaintiffs have standing to pursue this cust ody 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 establis hed custodial environment does not establish a substantive basis on wh ich 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 “unconstitu tional[]” application of the CCA). Rummelt and its predecessors had resolved the conflict in the statutory presumptions. They said th at 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 intere sts of the child.”); Greene v Walker , 227 Mich 672, 677-681; 199 NW2d 695 (1924) (citing cases).

32 “‘[A]s between two possi ble interpretations of a st atute, by one of which it would be unconstitutional and by the other valid, our plai n duty is to adopt that which will save the act.’” Bowerman v Sheehan , 242 Mich 95, 99; 219 NW 6917 A remaining constitutional question invo lves the amount of deference due

under Troxel to fit parents. We conclude that the statute provides sufficient deference to a fit natural parent’s fundam ental rights to the “care, custody, and management of their child . . . .” 33 We so hold because the statute requires, in order to rebut the parental presumpti on, clear and convin cing 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 convi ction as to the truth of the allegations sought to be established, evidence so cl ear, 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 disp utes involving natural parents, “it is

not sufficient that the thir d person may have establis hed by clear and convincing evidence that a marginal, th ough 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 cu stody 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 deci sion only a “presumption of va lidity” 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 furt her supported by a comparison with similar statutes in other states. The CC A’s provisions govern ing custody disputes between a natural parent and a third party are more defere ntial to the natural parent than some, but less deferen tial than others. Michigan appears to fall near the middle of the spectrum. At one end are th e 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 pres umption 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 be tween child’s parents and grandparents , 3119 ALR3d 1187, 1197-1198; In re Guardianshi p of Jane Doe , 93 Hawaii 374, 384- 385; 4 P3d 508 (Haw aii App, 2000). Under the doctrine most deferential to natural parents, the parents are entitled to the custody of thei r children unless (1) it clea rly appears that they are unfit, or (2) they have abandoned their ri ght to custody, or (3) “extraordinary circumstances” exist that require th ey 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 natu ral parent) (citations omitted); State ex rel KF , 2009 Utah 4, P67; 201 P3d 985 (2009) (requiring evidence of three factors establishing unfitn ess 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 resolv ing the issue. Rebutting the parental presumption in the states us ing this standard typically hinges on a determination of unfitness. Hence, this standard undoub tedly provides sufficient deference to a natural parent’s decisions regarding the ca re, 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 th e natural parent serves the be st interests of the child. Usually nonparents may rebut the pres umption 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 na tural parent’s wishes is often referred to simply as the “best intere sts of the child standard.” It focuses on the interests of the child and defines the relative benefits to the child of bein g with one or the other party. It requires the court to co mpare 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 deferen tial 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 rela tionship with the child to rebut it. The third party20 B. Troxel Does Not Require a Threshold Dete rmination of Parental Fitness

in Custody Cases If No St atutory Requirement Exists

Defendant and some of the amici curiae argue that th is Court must read into the statute an implicit requirement for a f itness 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 whet her 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 an alysis because it would insufficiently protect the parent’s rights.

Defendant relies on In re JK in support of her argumen t. In that case, this Court stated that “[a] due-process viol ation occurs when a state-required breakup of a natural family is found ed solely on a ‘best interest s’ analysis that is not supported by the requisite pr oof of parental unfitness.” 38 Defendant urged us to examine the Probate Code, th e 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 th e evidence that gran ting 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 pa rental presumption to the extent that a court need give decisions by fit custodial pa rents only a “presumption of validity.” 39 Since MCL 722.25(1) applies a substantial pres umption of the validity of decisions by all parents, including fit custodial pa rents, the constituti onal underpinnings of

Troxel are satisfied. 40

39 Other jurisdictions whose courts ha ve considered the proper application of Troxel in similar legal contexts have also rejected the idea that Troxel mandates a determination of parental fitness. Rath er, in the context of motions to terminate a guardianship or to modify custody in fa vor 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, cu stodial parents. . . . It did not address situations in which the pare nt 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 re quire a demonstration of parental unfitness before allowing the parental pres umption to be rebutted where no such demonstration is required by the statute. That would in effect, give unlimited deference to all parenting de cisions 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; 89 1 A2d 564 (2005). Such a determination is not constitutionall y mandated. To ho ld 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. Term ination cases introduce a significantly heightened intrusion upon a parent’s fu ndamental right to parent because they involve an all-or-nothing pr oposition: 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 resu lt in an irrevocable severance of parental rights or “‘a unique kind of deprivation’” th at forces parents to confront the state. 41 The Legislature has addressed these conc erns by requiring the state to prove parental unfitness by “clear and convincing ev idence” in termination cases. It has

We note that our interpretation of th e relevant provisions of the CCA is similar to that of the courts in many juri sdictions that also u tilize an intermediate parental presumption standard. In re Guardianship of Doe , 93 Hawaii at 385 (“Because the preference for parents estab lished 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 th e 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 cust ody 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 “sta te-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 clea r and convincing ev idence 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 stat e does not initiate the proceedings in which the natural parent’s rights are at st ake. Rather, custody determinations in cases such as this merely give “rec ognition to a family unit already in

existence . . . .” 43 Under such circumstances, “[ w]hatever might be required in other situations, we cannot say that the St ate was required in this situation to find anything more than that [ its decision was] in the ‘bes t interests of the child.”’ 44

42 MCL 712A.19b(3).

43 Quilloin , 434 US at 255.

44 Id.24 Finally, we note that a natu ral parent’s fitness is an intrinsic co mponent 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 obser ve that fitness is an inextricable component of the court’s inquiry. For example, MCL 722.23(f) to (g) require the tria l court to compare the “moral fitness” and the “mental and physica l health” of the parties. These factors reflect the legislative determ ination that concerns abou t parental fitness are of paramount importance in custody determinat ions. Therefore, MCL 722.25(1) uses the clear and convincing evidence standard to safe guard the constitutionally protected fundamental rights of fit cu stodial 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 Determin ation of Fitness We again note, as a preliminary observ ation, 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 be st interest inquiries interchange ably is because of “the fact that both doctrines seek the same basic obj ective from two different approaches”).25 parents. Nothing in the statute exp licitly 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 c onstitute a de facto evaluation of each

individual’s fitne ss 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 st atutory presumption in MCL 722.25(1) is “‘a presumpti on 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: th e parental presumption cont rols 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 prec edent affecting an area in which an exhaustive codification of th e law is undertaken and en acted, we must conclude the omission was intentional.”); comp are MCL 712A.19b(3) (specifically providing for termination of parental right s 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; 2 44 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 cu stodial environmen t presumption has none. This persuades us that the pare ntal 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, 25 3; 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 belie ve 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 th is questionable proposition and why, in any event, that determination justifie d the invention of a new standard. See Rummelt , supra at 496 (“For the reasons stated th erein, we agree with this Court’s decision in Glover .”).27 standard, as Mason did, we believe that the better c ourse 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, wh ereas the parental presumption has some constitutional provenance, the established custodial environmen t presumption does not, (2) by caselaw interp reting the tension betwee n MCL 722.25(1) and MCL 722.27(1)(c) and (3) by the la ck of reference to fitness in the CCA. The Court is unwilling to restrict the parental pres umption absent clea r evidence from the Legislature that a restriction was intende d. Moreover, the CCA ’s notable silence regarding fitness, abandonment, or negl ect 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 grea ter 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 pr oof in that it essentially applied the best interests of the child standard to disputes between unfit natural parents and third-party custodians, in contravent ion 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 unf it to have custody or had neglected or abandoned the child.” Bahr , 60 Mich App at 359. After concluding that the28 Because the parental presumption in MCL 722.25(1) satisfies the constitutional standards mandated for fit pa rents, no justification existed for

Mason to restrict that presumption only to fit parents. Nothing in Troxel can be interpreted as precludi ng states from offering greater protection to the fundamental parenting rights of natural pa rents, regardless of whether the natural parents are fit. This rule applies here.

Legislature had deliberatel y omitted from the CCA any f itness determination in such cases, Bahr plainly stated that “[r]ebuttal of the presumption in favor of parental custody no longer requires pr oof 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 betw een a natural parent and a third party, the CCA requires no fitn ess 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, in cluding Michigan, have moved away from using the ‘parental unfitness’ or ‘ext raordinary circumstances’ standards and focus on a placement’s detr iment 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 st atutory presumption in MCL 722.25(1). Instead, it denied the parental presumpti on favoring the natural father on the basis of the fact that he was not entitled to th e 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 be fore 1990. However, we refer to Bahr here because it correctly st ated Michigan cust ody 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 subjec tive application of that standard in this case, violated her Fourteenth Amendment 54 due process rights. She claims that,

because the Mason standard does not utilize objective criteria for evaluating parental fitness, it lacks procedural protec tions 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). Th e statute is entirely silent on the issue of a parent’s fitness. 55 Nothing in the stat ute or the CCA generally 56 suggests that parental fitness is a prerequisite to entitle ment to the parental presumption in MCL

54 US Const, Am XIV.

55 Justice Corrigan ack nowledges as much, post at 17, but brushes this “bare observation” aside. We disagree w ith 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 initia te an action under the CCA. See pp 30- 31 of this opinion.

56 Only one provision in th e CCA refers to parental fitness at all. MCL 722.27b requires a court considering wh ether to grant visitation time to grandparents to give deference to a fit pare nt’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 unc onstitutional under Troxel

.30 722.25(1). Because Mason ’s holding was neither c onstitutionally 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 ad dress what this opinion does not do: (1) This case deals with custody actions initiated under the CCA involving both the parental presump tion 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 a ny new rights for parents. The United States Supreme Court decisions regardi ng the constitutional rights of parents previously discussed in this opinion provide guidance th at informs our analysis. This opinion does not magi cally grant parents additiona l rights or a constitutional presumption in their favor. It does not grant unfit parents c onstitutional rights to their children other than due process rights. (3) Parents may not bring actions und er the CCA and invoke the parental presumption in MCL 722.25(1) as an end run around previous custody determinations. We agree with Justice Co rrigan’s conclusion that [p]rinciples of collateral estoppel generally prevent a party from relitigating an issue already31 established in the first proceeding.” 57 This Court has lo ng recognized the applicability of these principles to probate court orders such as the guardianship

orders in this case. 58 Subsequently, we reiterated th at “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 ri ghts and grants those rights in the child, including a right to physical and lega l custody, to the guardian under MCL 700.5215. Thus, defendant in this cas e would have been collaterally estopped from initiating a custody action under the CC A. A parent’s recourse under these

circumstances is to file a moti on 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, 69 6; 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 or der to circumvent valid court orders affecting custody. 61

61 Given this limitation, we reject Jus tice 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 approa ch, a parent who is deemed unfit by a court or admits bei ng unfit at any time is never entitle d to benefit from the parental presumption in MCL 72 2.25(1). Thus, defendant in this case is not entitled to the presumption in her favor because “defenda nt’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 ma king 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 fi nding may still be considered. Determinations of past, admitted unfitness are inevitably reconsidered when there are ongoing proceed ings before the court. I ndeed, as Justice Corrigan observes, “a parent’s fitness or cust ody rights are governed by an ongoing proceeding—such as the guardi anship 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 acknowl edged such a progression in his increasingl y generous visitation orders. Thus, our main disagreement with Ju stice Corrigan’s conclusion is the extent to which she would make a prior finding of unfi tness largely dispositive in resolving the conflicting presumptions in the CCA. Here, plaintiffs relied primarily on defendant’s past conduct as a basis for opposi ng her requests for increased visitation. Nevertheless, the court overseeing the guardianship proceedings repeatedly ruled in defend ant’s favor. During those proceedings, defendant was fulfilling increasing duties to her children and gaining increased visitation time. By comply ing with what the court required of her, defendant properly attempted to overcome the prior find ing of unfitness that plaintiffs rely on heavily in this custody action. Indeed, had defendant filed a motion to terminate the guardianship under MC L 700.5208, her admission of unfitness would have been relevant. But the relevance would ha ve been only to the extent that it still33 IV. P LAINTIFF ’ S B URDEN OF P ROOF ON R EMAND Given our conclusion that Mason incorrectly interpre ted MCL 722.25(1),

we remand this case for reevaluati on 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 demonstr ate by clear and convin cing evidence that custody with defendant does not se rve 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 weig ht during the best interests analysis. Post at 20 n 14. Yet she w ould make the initial admissi on 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 illustra tion of how such an analysis begs the question. Is the establishment of the es tablished 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[] ove r time.” In this case, has defendant’s “lack of fitness,” diminished as the prob ate court found it to be, extended over a long enough time? How much time must a parent be unf it, and how unfit must he or she be?

62 Defendant’s remaining arguments clai m that the circuit court abused its discretion by finding her to be an unfit parent and in ev aluating the best interests factors in MCL 722.23. Given that we are remanding this case for a new best interests hearing, we declin e 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 me et the requisite burde n of proof in this custody action, the court has the authority to keep the guardian ship intact without awarding custody to either party. That is, on remand, the court could do a number of different things, includi ng, but not limited to: (a) “[a]ward the custody of the34 make this showing, plainti ffs must prove that “all rele vant factors, including the

existence of an established custodial e nvironment and all le gislatively 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. C ONCLUSION We hold that the established cust odial 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 convinci ng 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 dete rmination 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 Appe als 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 invol ved 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 th is opinion, the defendantmother cannot circumvent the existing gu ardianship order by initiating a custody action. Rather, the only action she may in itiate 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 gi ven weight in the court’s anal ysis and ultimate decision. Therefore, we do not believe this holdi ng “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 conf identiality of the ps ychiatric evaluation report is granted. The report shall be re moved 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. HathawayS T A T E O F M I C H I G A N

SUPREME COURT

ROBERT HUNTER a nd 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 an d 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 intere sts hearing for the reasons stated in the following parts of Chief Jus tice Kelly’s majority opin ion and Justice Corrigan’s partially concurring and partially di ssenting opinion, which are as follows: With respect to Chief Justice Kelly’s ma jority opinion, I jo in 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. WeaverS 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 op inion. I agree with the majority’s conclu sion that “fit” parents benefit from a constitutional presumption that they will “act in th e 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 agr ee that, when prior court proceedings govern child custody—such as child protective pr oceedings 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 Protecte d Individuals Code (EPIC),

MCL 700.5201 et seq. ,—these proceedings generally have preclusive effect and the prior court has superior jurisdicti on. A parent cannot circumvent these2 proceedings by seeking custody under th e Child Custody Act (CCA), MCL 722.21 et seq . See ante at 30-31. I do not agree with the majority that the cons titutional 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 he ightened constitutional meaning so that it always prevails over the manda te concerning established custodial

environments in MCL 722.27(1)(c). I do agree that constitutional considerations require the presumption in § 5(1) to pred ominate in the case of a fit parent. However, when a parent’s lack of fitnes s has been previously established or

admitted and a third party has an established cu stodial 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—volun tarily relinquished custody of the children to plaintiffs. Plai ntiffs, 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 court 1 to appoint plaintiffs as limited guardians for the

1 The majority observes th at 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 helpfu l to note that the Family Division of the Oakland Circu it Court and the Oakland County Probate3 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 ri ghts 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 unde r 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 matte rs pursuant to a concurrent jurisdiction plan authorized by MCL 600.406. Thus, a lthough probate courts generally have jurisdiction over guardiansh ip proceedings and circuit courts have jurisdiction over CCA proceedings, all the proceeding s between the parties in this case effectively took place before the same court. Even absent a c oncurrent jurisdiction plan, the probate judge assigned to a gua rdianship 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 Judg e Eugene A. Moore presided over the guardianship proceedings bu t later disqualified himself in the CCA matter. The CCA proceedings were ultim ately presided over by Judg e Linda S. Hallmark. Judges Moore and Hallmark are both Oa kland County Probate Court judges assigned to the Family Division of the Oakland Circuit Court.

2 By design, limited guardianships give parents the opport unity to correct whatever conditions led them to give up custody of th eir 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 700.520 8 and, if the parent has “substantially complied” with the placement plan, th e court must terminate the guardianship. MCL 700.5209(1). A limited guardian also may not seek full custod y of a child under the CCA if the parent substantially co mplies with the plac ement plan. MCL 722.26b(2). Before establishing a limited guardianship, however, the parent must also be informed that, if he fails withou t good cause to comply with the placement plan, his parental rights may be termin ated under the Juvenile Code. MCL 700.5205(2).4 Defendant could have rega ined custody of the ch ildren by substantially complying with her placement plan, in which she promised to seek drug treatment and provide a drug-free household for the ch ildren. Instead, she and her husband continued their drug use and became invol ved in crime. Although they petitioned to terminate the limited guar dianship in May 2 003, the court denied their petition and, instead, ordered them to continue drug treatment, verify their employment, and maintain more regular visitation with th e children. Nonethel ess, they returned to crime. They were arrested. After be ing released on bail, they stole a car and fled the police. In June 2003, plaintiffs petitioned the court to ap point 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 susp ension of parental visits. The courtappointed guardian ad litem for the children investigat ed and confirmed that

defendant and her husband we re 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 susp ended their visitation rights until further order. On July 16, 2003, the court appointed plain tiffs 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 th e petition is not based merely on the susp ension of parental rights incident to th e limited guardianship petition.5 ultimately convicted and impr isoned in August 2004. In July 2005, after her release from prison, defendant sought visita tion with her childr en. By this time

she had not seen them in over two years. The court restor ed her visitation rights in November 2005 and defendant began payi ng a small amount of child support.

After several months of successful visits and regular child support payments, the court ordered expanded, unsupervised pare nting time to begin in May 2006, with overnight visits at defendant ’s home in Indian a to begin in July 2006. By this time, the children had been livi ng 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 th e CCA. The court employed the now-outdated rubric in Mason v Simmons , 267 Mich Ap p 188; 704 NW2d 104 (2005), to declare defendant un fit and award custody to plaintiffs. 4

II. SUPERIOR JURISDICTI ON OF PRIOR PROCEEDINGS First, I agree that the guardianship proceedings here precluded defendant from separately seeking cu stody 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 circu it court’s jurisdiction by f iling a simultaneous custody

action under the CCA. Because this holding is a crucial elemen t of the majority opinion, I offer an example to illustrate the importance of th is jurisdictional rule. Child protective proceedings under the Juvenile Code ar e designed to protect children from abuse and neglect—often by temporarily rem oving them from their parents’ custody under emergency conditions—w hile aiding parents to r ectify unfit conditions and regain custody of their ch ildren. The purposes of th ese 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 b een abandoned and effectively closed. Accordingly, this Court held: As stated by Mr. Justice C OOLEY 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 author ity, 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 form er court having acquired it first, retained it . [ Schell , supra , 257 Mich 88 (emphasis added).]7 nullified if a parent coul d avoid them by regaining custody in a separate proceeding under the CCA. The Juvenile Code protects children wh o, among other thi ngs, are subjected to abuse, neglect, or unfit living conditions. MCL 712A.2(b). 6 The code empowers the Department of Human Serv ices (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 prov isions of section 2(b) . . . .” MCL 712A.13a(2). If the c ourt 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 wi th the parent, if possible, to restore custody with the parent. 7 As I will explain further, this pro cess is statutorily designed to take up

6 The most relevant provisions of MC L 712A.2(b) confer court jurisdiction over a child: (1) Whose parent or other pers on legally responsible for the care and maintenance of the juvenile , when able to do so, neglects or refuses to provide proper or necessa ry support, education, medical, surgical, or other care necessary fo r his or her health or morals, who is subject to a substantial risk ofharm 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 enviro nment, 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 pare nt’s due process rights throughout the proceedings, including rights to notice, to participate in all proceedings, see MCL8 to one year. See MCL 712A.19a(1). With in 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 r ectify 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 appropr iate. MCL 712A.18f. The court generally reviews the case within 18 2 days of the child’s removal and every 91 days thereafter. MCL 712A.19(3). At each revi ew hearing, the court must evaluate the parent’s comp liance with the service plan , MCL 712A.19(6) and (7), and may order additional services or ac tions. MCL 712A.19(7)(a). If a child remains outside his home, the court must conduct a permanency planning hearing within one year of th e child’s removal. MCL 712A.19a(1). At that hearing, if the court determines that th e “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 th at the parent poses a substantial risk to the child, it may order th e DHS to initiate proceedin gs to terminate parental rights. MCL 712A.19a(6). If termination is not in the child’s best interests, the court may also consider alternative plac ement 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), an d MCL 712A.19b(2)(c), and to an attorney at each stage of the pr oceedings, 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 st andards 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 pr otective proceedings. This is because, as noted, the requisite conditions for rem oval 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, th e DHS or a third party cust odian 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). Beca use the CCA creates a higher burden for a third party seeking cu stody, the parent co uld 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 m eet 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 cust ody. Thus, if the parent could seek custody under the CCA, the Legislatur e’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 th e CCA although the parent’s rights were10 eligible for termination under the Juven ile 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 contin ue until the child is emancipated, MCL 712A.19a(7)(c), and the guardian gains a ll the traditional parent-like rights and duties inherent in a guardianship established under the EPIC. MCL 712A.19a(8). If the natural parent could nonethele ss obtain custody under the CCA, the purposes and terms of these pre-termina tion guardianships would be obviated. Particularly under the major ity’s rule, the parent could file under the CCA to shift

the burden to th e guardian, thereby requ iring 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 de termination during the child protective proceedings that the parent posed a significant harm to hi s child would become irrelevant and the guardian would be forced to litigate in defe nse of his appointmen t. In addition to subverting the statutory scheme in favor of pre-termination guardianships, this result likely would cause voluntary guar dians to decide against accepting guardianship appointments. 8 In sum, important, practical reasons undergird the Schell rule and the principles of collateral estoppel addresse d by the majority. Once a court attains

8 Indeed, the EPIC’s guardianship sc hemes could be eff ectively nullified, generally, if a parent could avoid ongo ing guardianship proceedings by simply filing for custody under the CCA.11 jurisdiction of a child’s custody under the Ju venile Code or the EPIC, as the first court to attain jurisdicti on over these matters, it re tains 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 pa rent to do so would underm ine the very purposes of the other statutory schemes addressing cust ody and child welfare, not to mention

the havoc and confusion in courts atte mpting 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 se eks custody, “guardianship proceedings concerning that child in the probate cour t are stayed until disposition of the child custody action” and permits an ensuing circu it court order to supersede probate court orders concerni ng 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 r ecourse 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 ma jority on the point just discussed, I disagree with the majority’s resolu tion of the apparent conf lict between MCL 722.25(1) and MCL 722.27(1)(c) as it applies he re, where the guardians invoked MCL 722.26b. I certainly ag ree with the majority, ante at 9, that the “fundamental liberty interest of natural parents in th e care, custody, and management of their child does not evaporate simply because they have not b een 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 establishe d, as it was here, fundamentally fair procedures do not require the court to give that parent the full benefit of the parental presumption. Rathe r, a parent’s rights to a ch ild are limited when he has

failed in his duties to that child. In the majority’s ow n 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 pare nt adequately cares

for” his child. Troxel , supra , 530 US 68 (O’Connor, J.). Indeed, the parental right13 derives from a parent’s ‘high dut y’ to care for his children. Id. (citation omitted). 10 Accordingly, when a parent fails to care adequately fo r his child—and particularly

10 In accord, historically this Court ha s recognized that parental rights do not derive from mere biology or exist i ndependently from parent al 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 di scharges the correlative duties

. But the absolute power of the fa ther over his infant children, to treat them as property and dispos e of them as he sees fit because they are his, which was once reco gnized 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 citizensh ip which vests it with rights and privileges, entitling it to governmental protection — “And such government is obligat ed 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 contro l, though recognized as a natural right and protected when properly exer cised, 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 bou nd by demands founde d 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; 10 8 NW2d 869 (1961): A child also has rights , which include the right to proper and necessary support; education as requi red by law; medical, surgical14 when third parties carry out the parent’s high duty in his stead—the automatic presumption in favor of the parent no long er strictly applies. Therefore, although fit parents benefit from a constitutional pres umption that they wi ll “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 es tablished 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 pers on, the court shall presume that the best

interests of the child are se rved by awarding custody to the parent or parents, unless the contrary is established by cl ear and convincing evidence.” But the powers of the circuit court in any acti on under the CCA are also governed by MCL 722.27, which circumscribes the or ders 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 th is act or has arisen incidentally and other care necessary for his he alth, morals, or well-being; the right to proper custody by his pare nts, 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 themselv es that the child becomes subject to judicial control. A parent having violated the rights of a child forfeits his right to the custody, cont rol and upbringing of that child; and when the safety and best intere sts 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 c ourt or an order or judgment of the circuit court, for the best intere sts 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 paymen t of support for the child, until the child reache s 18 years of age. . . . (b) Provide for reasonable pare nting 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 ch ange of circumstances . . . . The court shall not modify or amend its previous judgments or orders or issue a new order so as to ch ange the established custodial environment of a child unless there is presented clear and convincing evidence that it is in th e best interest of th e child. The custodial environment of a child is establis hed 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 e nvironment, and the inclination of the custodian and the child as to pe rmanency of the relationship shall also be considered. . . . (d) Utilize a guardian ad litem or the community resources in behavioral sciences and other prof essions in the investigation and study of custody disput es and consider their recommendations for the resolution of the disputes. (e) Take any other action consid ered to be necessary in a particular child custody di spute. [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 convincing16 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 requi site 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 cons titutional protections for third persons underlie the established custodial environment presumption in MCL 722.27(1)(c).” Ante at 15. This may be so. Bu t 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 “establishe d custodial environment” is defined in terms similar to those used to describe a child’s “rights and privileges entitling it to governmental protection,” whic h obligate the government “to consult the welfare, comfort, and interests of su ch child in regulatin g its custody during the period of its minority.” Gould , supra , 174 Mich at 670 (internal quotation marks and citation omitted). An establishe d custodial environment exists under § 7(1)(c) “if over an appreciable time the ch ild naturally looks to the custodian in that environment for guidan ce, discipline, the necessities of life, and parental comfort.” Compare the ri ghts of a child listed by Herbstman , supra , 363 Mich at 67: “proper and necessary support; educ ation as required by law; medical, surgical, and other care necessary for his he alth, morals, or well-being; the right to proper custody by his parents, guar dian, 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 cu stody from a third party with an establishe d custodial environment, ante at 26; both provisions appear to mandate action from the court, st ating respectively that “the court shall presume that the best interests of th e 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 pres ented clear and convin cing 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 proh ibition on changing an established custodial environment in § 7(1)(c) clearl y controls, as a textual matter, whenever the terms of both § 5(1) and § 7(1)(c) ap ply in a given case. I do not agree with the majority that, th rough § 5(1), the Legislature cl early intended to “offer[] greater protection [than is requ ired by the constitution] to the fundamental parenting rights of natural parents, rega rdless of whether the natural parents are fit.” Ante at 28. Nevertheless, my observati ons concerning the textual dominance of 7(1)(c) are largely inapposite to my ov erall conclusion; I am persuaded that, if17 directs circuit courts to ignore this mandate in all cases where any natural parent— except one whose parental rights were previously te rminated or suspended, ante at 31—seeks custody from a third party with an established custodial environment. But in light of the strong mandate e xpressed in § 7(1)(c), and because the constitutional parental pres umption 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 pers on with an esta blished 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 releva nt. I acknowledge that the CCA does not refer to fitness, see ante at 27. But this bare obser vation does not adequately consider the various proceedings at whic h a parent’s fitne ss may be questioned— indeed, it does not consider the very proc eedings 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 wh at a child lacks in maturity, experience, and cap acity 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 mark s and citation omitted). Various proceedings call upon courts to make fi ndings, 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 prot ective proceedings described above and guardianship proceed ings like this case are good ex amples of proceedings that, by their nature, may establish a parent’s unfitn ess. Principles of collateral estoppel generally prevent a party fro m relitigating an issue alread y 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, 69 6; 23 NW2d 131 (1946). Further, permitting a parent to avoid past fi ndings or admissions of

unfitness and nonetheless gain a constitutiona l 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 es tablished, there is no longer a constitutional reason to ignore the mandate in MCL 7 22.27(1)(c) in favor of MCL 722.25(1). Accordingly, I conclude that in cases where a parent’s lack of fitness was either19 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; 52 6 NW2d 889 (1994), which required the trial court on remand to consider “up-to-date inform ation” 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 ap plied 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 determ ining 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 determ ination on remand in light of the fact that circumstances may chan ge during the appellate process. See Fletcher , supra 447 Mich at 888-889. Indeed, it expressly prohibited reconsideration of the thre shold question whether any party had an established custodial environment for purp oses 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 enjo yed 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 st ates that I would “mak e the initial admission of unfitness dispositive” although defendant “was fulfilling increas ing duties to her children and gaining increased visitation time.” Ante at 32 n 61. First, I would note that—just as the majority asserts th at the established custodial environment may be given weight when the court co nsiders the best interests factors, ante at 34 n 65—defendant’s current, apparently in creasing ability to care for her children should certainly be given weig ht during this process. Se cond, 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 defe ndant admitted her unfitness in 2002, had no contact with her children at all for approximately two year s during 2003-2005, was released from prison in July 2005 and ha d 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 w ith plaintiffs in Michigan for about four years. Accordingly, I emphasi ze 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 specific ally to “modify or amend its previous judgments or orders or issue a new order so as to change the established custodial20 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 childre n. They could have regained custody of the children by substantially complying w ith their placement plan. Instead, they relapsed,

continued their involvement with crime, and failed to appear at the hearing on plaintiffs’ petition to esta blish a full guardianship. 14 Under these circumstances, defendant’s unfitness was clearly estab lished at prior proceedings. Indeed,

defendant admitted her unfitness and willfu lly forewent her statutorily granted right to regain custody despite the admi ssion. Defendant further could have challenged the results of th e 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 custodia l environment with a third party. Indeed, by definition, th e prohibition on changi ng the established custodial environment in § 7(1)(c) applie s 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 envi ronment 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 defenda nt’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 pe ople who cared for de fendant’s children in the face of her parenting failures. Fo r 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 w ith the majority that a fit parent who properly seeks custody under the CCA benefits from the pa rental presumption in MCL 722.25(1). But, contrary to the majority, I would co nclude that, where a parent’s lack of fitness is established, MCL 722.27(1)(c) cont rols 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 cas e and which permits guardians to seek custody although guardianship proceedings are ongoing. But, finally, I agree with the majority that even when a custody ac tion is properly filed under § 6b as here,

the circuit court is not boun d 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 ongo ing guardianship22 proceedings in which defend ant was fulfilling increasing duties to her children and gaining increased visitation time.

Maura D. Corrigan