Demski v. Petlick
309 Mich. App. 404
| Mich. Ct. App. | 2015Background
- Child MP was born in January 2011; Jeffrey Petlick was married to the mother at birth and was the presumed father, but genetic testing later showed Joseph Demski was the biological father.
- Demski filed to establish paternity and request custody/parenting time; the trial court tested DNA (>99.999% paternity) and proceeded under the Revocation of Paternity Act (RPA).
- The court found Demski was MP’s biological father and, after soliciting input from child psychotherapist Robin Zollar, entered an order of filiation and later (Feb 4, 2014) awarded joint legal custody to mother and Demski, sole physical custody to mother, and supervised parenting time to Demski.
- Defendants (mother and Jeffrey) argued the court erred in (1) applying the wrong legal standard and assigning burdens for the paternity/best‑interest analysis, (2) failing to find a RPA best‑interest bar to declaring the child born out of wedlock, (3) lacking authority or an evidentiary hearing to enter custody/parenting‑time orders, and (4) relying on an expert report received post‑trial without cross‑examination.
- The Court of Appeals affirmed: it held the trial court properly applied RPA standards (including consideration of MCL 722.1443(4) factors), had authority under the Child Custody Act to enter custody/parenting‑time orders incident to the paternity action, and did not commit reversible error in using Zollar’s follow‑up evaluation as part of a supervised reintroduction process.
Issues
| Issue | Demski (plaintiff) Argument | Petlicks (defendants) Argument | Held |
|---|---|---|---|
| Whether trial court erred assigning burden/evidentiary standard under RPA | Demski bore burden and the court may apply the RPA best‑interest factors (court should determine paternity) | Petlicks: trial court failed to assign burden; clear‑and‑convincing standard should have governed change to established custodial environment (per Helton) | Affirmed — plaintiff bears burden; trial court effectively applied clear‑and‑convincing review of best‑interest factors and Helton is not controlling here |
| Whether court should have refused to determine child born out of wedlock under MCL 722.1443(4) | DNA + consideration of statutory factors justified ruling that child was born out of wedlock and paternity order should enter | Petlicks: statutory best‑interest factors favor preserving presumed father’s status; disestablishing Jeffrey harms child | Affirmed — trial court considered MCL 722.1443(4) factors, credited expert testimony that child could benefit from careful introduction, and did not clearly err |
| Authority / need for separate evidentiary hearing before entering custody/parenting‑time orders | Demski: custody/parenting time were pled issues and trial testimony addressed them; court may resolve incidentally under Child Custody Act | Petlicks: court lacked authority or at least needed a separate custody hearing; Schlender requires evidentiary hearing | Affirmed — court had authority under MCL 722.27(1) because custody dispute was submitted; the earlier bench trial supplied evidentiary hearing (no plain error) |
| Use of expert follow‑up report after close of proofs without new cross‑examination | Demski: Zollar was defendants’ own expert; court ordered follow‑up evaluation and incorporated it into a supervised, therapeutic bridging plan — no deprivation of process | Petlicks: receiving and relying on post‑trial report without cross‑exam violated due process and MRE 706 / right to confront | Affirmed — Confrontation Clause inapplicable in civil case; Zollar was defendants’ expert and process did not show plain error (court required supervised bridging, not unsupervised parenting time) |
Key Cases Cited
- Grimes v. Van Hook‑Williams, 302 Mich. App. 521 (Mich. Ct. App.) (RPA governs actions to determine a presumed father is not the child’s father)
- Sprenger v. Bickle, 307 Mich. App. 411 (Mich. Ct. App.) (RPA authorizes determination of paternity and order of filiation)
- Glaubius v. Glaubius, 306 Mich. App. 157 (Mich. Ct. App.) (trial court may refuse to find child born out of wedlock if not in child’s best interests)
- Helton v. Beaman, 304 Mich. App. 97 (Mich. Ct. App.) (discussion of burdens/standard where established custodial environment exists; plurality reasoning not controlling)
- In re AP, 283 Mich. App. 574 (Mich. Ct. App.) (presumption favoring established custodial environment in custody disputes)
- Walters v. Nadell, 481 Mich. 377 (Mich.) (statutory "may" indicates discretionary action)
- Parks v. Parks, 304 Mich. App. 232 (Mich. Ct. App.) (RPA framework and interplay with paternity and filiation relief)
- Kessler v. Kessler, 295 Mich. App. 54 (Mich. Ct. App.) (MCL 722.27(1) grants circuit court authority to order custody/parenting time incident to other actions)
- Schlender v. Schlender, 235 Mich. App. 230 (Mich. Ct. App.) (party in custody matter entitled to evidentiary hearing; trial court may not decide custody on pleadings alone)
- Pierron v. Pierron, 486 Mich. 81 (Mich.) (standards for reversing custody findings; deference to trial court on credibility)
- Berger v. Berger, 277 Mich. App. 700 (Mich. Ct. App.) (abuse of discretion standard for custody decisions)
- Santosky v. Kramer, 455 U.S. 745 (U.S.) (clear and convincing standard required where particularly important individual interests are at stake)