Haller v. HallerHaller v. Haller
- Reporters:
- ,
- Before:
- Maher
Plaintiff appeals as of right from a judgment of divorce entered by the trial court following a custody proceeding.
The first issue raised by plaintiff is whether she was entitled to and received effective assistance of counsel. Plaintiff argues that due process requires effective counsel in a divorce action where custody of a minor child is in dispute. Plaintiff relies on Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976), which established an indigent defendant’s due process right to appointed counsel in a paternity proceeding under Const 1963, art 1, § 17. We hold that plaintiff had no due process right to counsel, and, therefore, no constitutional right to effective counsel in her divorce action.
It is axiomatic that the right to effective assistance of counsel is derived from a right to counsel. In re Rogers, 160 Mich App 500; 409 NW2d 486 (1987). Michigan récognizes a right to counsel in termination of parental rights actions, MCR 5.906(C)(2)(b), as well as in paternity proceedings. Artibee, supra, p 56.
In
Artibee,
our Supreme Court stated: “An analysis of what process is due in a particular proceeding must begin with an examination of the nature of the proceeding and the interests which may be affected by it.”
Id.,
pp 56-57. The
Artibee
Court focused on the following factors: (1) paternity actions are “quasi-criminal,” generally prosecuted by public officials at public expense, (2) a defendant
Applying this analysis to the instant case, we find no due process right to counsel.
First, and foremost, a custody proceeding is a civil action initiated by and on behalf of the litigants.
Second, while we recognize that a parent’s interest in the care and custody of a minor child is an important interest that warrants due process protection,
In re Dittrick Infant,
80 Mich App 219; 263 NW2d 37 (1977), a custody decree does not constitute a complete termination of the parental bond. Full parental rights are retained including reasonable visitation.
Third, although we find the proceedings sufficiently complex to require counsel, this factor alone is insufficient to give rise to a due process right to appointed counsel.
We therefore conclude that the due process fac
The second issue raised by plaintiff concerns the trial court’s determination that a custodial environment had not been established with plaintiff. Plaintiff argues that the finding was against the great weight of the evidence. We disagree.
The Child Custody Act,
The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
The act requires this Court to affirm a child custody order absent a palpable abuse of discretion, clear legal error on a major issue, or findings of fact made against the great weight of the evidence.
In the present case, the trial judge carefully reviewed the troubled history of custody and determined that the plaintiff had not established a custodial environment for the child. The factors cited by the judge included plaintiff’s temporary custody of the child, the child’s age, the care provided by the mother and the father, the home situation of both parties, the relationship between
We conclude that the trial court’s findings of fact were not against the great weight of the evidence. Thus, the determination that no custodial environment had been established is affirmed.
Affirmed.