KILLINGBECK v KILLINGBECK
Docket Nos. 258358, 261404, 261405
MICH APP
December 6, 2005
269 MICH APP 132
Rebeka S. Killingbeck brought an action for divorce from Dennis D. Killingbeck in the Arenac Circuit Court. Before they married, the Killingbecks had signed an acknowledgement of parentage stating that they were the natural parents of a son born to Rebeka Killingbeck. A judgment of divorce listing the boy as the parties’ child and awarding sole physical custody to Rebeka Killingbeck was entered. Rebeka Killingbeck and Tony Rosebrugh thereafter filed a paternity action to revoke the acknowledgement of parentage and to declare Rosebrugh‘s paternity of the child. In the paternity case, the court, Ronald M. Bergeron, J., entered a stipulated order revoking the acknowledgement of parentage and amending the child‘s birth certificate to show Rosebrugh‘s paternity. In the divorce case, the court entered an order providing that Dennis Killingbeck shall continue to have the rights of a de facto father and that those rights would not be diminished by any request by Rosebrugh for parenting time, support, and custody. The court also allowed Rosebrugh to intervene in the divorce case for purposes limited to custody, parenting time, and support. The court subsequently denied Rosebrugh‘s motion to terminate any parental rights or duties of Dennis Killingbeck, awarded Dennis Killingbeck specific, separate parenting time with the child, and assigned child support responsibility to Rosebrugh. Rebeka Killingbeck and Rosebrugh appealed.
The Court of Appeals held:
1. The claim by Rosebrugh and Rebeka Killingbeck that the trial court erred in not ordering Rosebrugh‘s joinder in the divorce lacks merit. The trial court permitted Rosebrugh to intervene in the divorce action and did not limit Rosebrugh‘s participation in the action. Additionally, the only parties to a divorce action are the two people seeking dissolution of their marriage, and third-party intervention is permitted only in extremely limited circumstances not present here. Rosebrugh‘s sole recourse on any issue involving his son was in the paternity action.
3. The trial court properly considered and denied Rosebrugh‘s motion for custody and parenting time without conducting a full evidentiary hearing regarding the child‘s best interests. To warrant a change in custody, the movant must first establish a material change in circumstances, something more than normal life changes, since the last custody order and demonstrate that the change has or could have a significant effect on the child‘s well-being. Rosebrugh‘s motion did not meet that threshold, so the trial court was not authorized by statute to revisit an otherwise valid prior custody decision and to engage in a reconsideration of the statutory best interests factors.
4. In this case, the only instance of an attorney‘s dual representation occurred during the period in which Rebeka Killingbeck and Rosebrugh shared the same goal—seeking the revocation of the acknowledgement of parentage. Because Rosebrugh failed to set forth with specificity the manner in which their attorney‘s joint representation prejudiced him during the later custody, parenting time, and support proceedings, no conflict of interest occurred.
Reversed in part, vacated in part, and remanded for further proceedings.
COOPER, P.J., concurring in part and dissenting in part, stated that the trial court improperly revoked Dennis Killingbeck‘s acknowledgement of parentage. The allegations to revoke the acknowledgement provide none of the bases for relief from final judgment in
Child custody, parenting time, and support issues are equitable in nature, but must be pursued within an extensive statutory framework. In this matter, the majority, without relying on equi-
With the entry of the judgment of divorce, Dennis Killingbeck was judicially determined to be the child‘s legal father, in spite of Rebeka Killingbeck‘s knowledge at that time that Dennis Killingbeck was not the child‘s natural father. Dennis Killingbeck is the legal and psychological father of the child, without regard to the fact that the child was not born or conceived during the marriage. As a legal parent, Dennis Killingbeck has full rights to seek parenting time under the Child Custody Act, limited only by the child‘s best interests. Tony Rosebrugh is the child‘s biological father. While the interests of a fit, biological parent may outweigh the interests of a third party, neither supersedes the best interests of the child. It is consistent to grant Dennis Killingbeck the right to parent his child and to grant Tony Rosebrugh parenting time, both, to protect the child‘s best interests. The trial court exercised its equitable powers and granted parenting time to both the child‘s biological and legal/equitable father, as the only way to serve the best interests of the child. Judge COOPER would affirm the trial court orders recognizing Dennis Killingbeck‘s right to parent his child and granting parenting time to Rosebrugh.
1. PARENT AND CHILD — EQUITABLE PARENT DOCTRINE.
The equitable parent doctrine applies upon divorce with respect to a child born or conceived during the marriage; the doctrine does not extend outside the context of marriage.
2. PARENT AND CHILD — EQUITABLE ESTOPPEL — NONPARENTAGE.
Although equitable estoppel has been used to estop a husband from denying paternity of a child born during the marriage, but of whom he is not the biological father, the doctrine does not extend beyond the context of marriage because the Child Custody Act, which comprehensively governs child custody matters, does not recognize it (
3. PARENT AND CHILD — CUSTODY — REDETERMINATION — MATERIAL CHANGE IN CIRCUMSTANCES.
To warrant a change in custody after an order has been entered, the movant must first establish a material change in circumstances, something more than normal life changes, since the last custody order and demonstrate that the change has or could have a significant effect on the child‘s well-being; without meeting that threshold, the trial court is not authorized by statute to revisit an
4. ATTORNEY AND CLIENT — JOINT REPRESENTATION — CONFLICT OF INTEREST — PREJUDICE.
An attorney generally is prohibited from representing multiple clients when the representation of one client is directly adverse to, or may materially limit, the attorney‘s representation of another client; a party seeking the disqualification of an attorney for a conflict of interest must specifically demonstrate how and as to what issues in the case the likelihood of prejudice will result (
Schmidt & Palumbo, PLC (by Nichol J. Palumbo), for Rebeka S. Killingbeck.
Tyler & Tyler (by Stephen W. Tyler) for Tony Rosebrugh.
Robert J. Dunn, P.C. (by Robert J. Dunn), and Patrick R. Winter P.L.C. (by Patrick R. Winter) for Dennis D. Killingbeck.
Before: COOPER, P.J., and BANDSTRA and KELLY, JJ.
BANDSTRA, J. These consolidated appeals involve custody, parenting time, and child support rights and obligations concerning Devon Dennis Rosebrugh, who is now seven years old. His biological parents are Tony Rosebrugh and plaintiff Rebeka Sue Killingbeck (hereinafter “plaintiff“). Defendant Dennis Dean Killingbeck (hereinafter “Killingbeck“) signed an acknowledgement of parentage following Devon‘s birth and acted as Devon‘s father for the first four years of his life until DNA (deoxyribonucleic acid) testing revealed Rosebrugh‘s parentage and these actions ensued. The primary issue raised on appeal is the trial court‘s order granting parenting time to Killingbeck, coupled with an
I. BACKGROUND FACTS AND PROCEEDINGS BELOW
Plaintiff testified that she lived with Killingbeck for a five-year period in the early 1990s; that she lived with Rosebrugh for approximately three months beginning in August 1997; and that, near the time of Devon‘s conception, she had engaged in intercourse with both Killingbeck, whom she saw approximately every other week, and Rosebrugh, whom she saw about once a week. Sometime in December 1997, plaintiff moved in with Killingbeck because she began to feel more attached to him. Rosebrugh testified that, before Devon‘s birth in July 1998, plaintiff assured him that they “would do blood work when the child was born,” but that after Devon‘s birth, Killingbeck prohibited contact between plaintiff and Rosebrugh. Further, in August 1998, plaintiff and Killingbeck prepared and signed an acknowledgement of parentage stating that they were Devon‘s natural parents. See
Plaintiff and Killingbeck continued living together through the time of their marriage in March 2002. In September 2002, plaintiff filed for divorce from Killingbeck. After doing so, plaintiff contacted Rosebrugh, and they arranged for genetic testing in October 2002 to
Regarding the paternal relationships with Devon, Rosebrugh testified that he visited Devon regularly since the child turned four years old, that he and Devon had a good relationship, that he provided financial support for Devon on many occasions, and that he intended to continue acting as Devon‘s father. Killingbeck testified that he had helped take care of Devon and supported him financially for the years that Devon lived with him, that he regularly contacted and had a close relationship with Devon until plaintiff moved out of the marital home, that he currently paid child support for Devon, that he still wanted to act as Devon‘s father, and that he had not yet participated in any paternity blood testing.
On March 17, 2004, the trial court entered two orders that tracked the terms of an agreement that Rosebrugh, plaintiff, and Killingbeck had reached in January 2004: (1) an order in the paternity case revoking the acknowledgement of parentage because Killingbeck had not fathered Devon, and amending Devon‘s birth certificate to reflect that Rosebrugh was Devon‘s biological father, and (2) an order in the divorce case providing that Killingbeck “shall continue to have the rights of a de facto father,” that “any request regarding parenting time, support and custody ... by ... Tony Michael
On May 4, 2004, Rosebrugh moved to intervene in the divorce case “with respect to custody issues of ... Devon,” pursuant to
During this time, plaintiff and Rosebrugh reconsidered the January 2004 agreement they had reached with Killingbeck, and the court orders implementing that agreement. On June 17, 2004, Rosebrugh moved to set aside the March 17, 2004, order regarding custody and awarding parenting time to Killingbeck, and moved to amend the judgment of divorce, to “dissolv[e] any legal rights or responsibilities ... Killingbeck has to ... Devon.” At the June 25, 2004, hearing on Rosebrugh‘s motion, Rosebrugh requested “that the Court enter another order in the divorce action indicating that there has been a paternity order that‘s in effect that states [Killingbeck] is not the biological father of Devon ....” The parties argued whether, in light of the established fact that Rosebrugh was Devon‘s biological father, they
On August 27, 2004, the trial court held a combined hearing in the divorce and paternity cases to address Rosebrugh‘s motion “to remove [Killingbeck] as a party and terminate his parental rights,” and his motion for custody, parenting time, and support. Rosebrugh and plaintiff reiterated their position that no legal basis existed for Killingbeck to assert parental rights to Devon. On the same date, the trial court entered an order denying Rosebrugh‘s motions, as well as an order denying a motion filed by plaintiff to modify the judgment of divorce to clarify the legal issue of the marriage between plaintiff and Killingbeck. After further discussions with the parties concerning appropriate parenting time for Rosebrugh and Killingbeck, the trial court also entered an interim order awarding Killingbeck specific parenting time with Devon.
On September 21, 2004, the trial court entered an order in the paternity case denying Rosebrugh‘s motion to remove Killingbeck as a party and to terminate his parental rights. The court also ordered that Rosebrugh and plaintiff share joint legal custody of Devon, that plaintiff maintain sole physical custody, that Rosebrugh and Killingbeck have specific, separate parenting time with Devon, and that Rosebrugh pay child support in the amount of $570 a month.
II. ANALYSIS OF ISSUES RAISED ON APPEAL
A
Rosebrugh and plaintiff first argue on appeal that the trial court erred by failing to order Rosebrugh‘s joinder
The record reflects that the trial court entertained Rosebrugh‘s motion to intervene in the divorce action, permitted Rosebrugh to argue at length concerning the merits of his motion to intervene and the various bases for his assertion that Killingbeck had no parental rights regarding Devon, and addressed all the positions Rosebrugh raised. Further, on June 24, 2004, the trial court entered an “[o]rder for [l]imited [i]ntervention” making “Tony Rosebrugh ... an intervener in this cause for the ... purpose of all matters relating to custody, parenting time, and support of the minor child ....” Because the trial court permitted Rosebrugh to intervene in the divorce action and Rosebrugh does not argue that the court limited his desired participation in the action, Rosebrugh‘s and plaintiff‘s assertion of error lacks merit.
B
Rosebrugh and plaintiff next argue that the trial court erred by awarding Killingbeck parental rights
Our Supreme Court in Van v Zahorik, 460 Mich 320; 597 NW2d 15 (1999), foreclosed reliance on the equitable parent and equitable estoppel doctrines under the circumstances of this case. In Van, the parties never married, but they resided together for six years and had two children together, one while they cohabited and another after the period of cohabitation had ended. Id. at 323. The plaintiff alleged that he supported the children, even after his relationship with the defendant terminated, until the defendant denied him access to the children because he had begun seeing another woman. Id. The plaintiff filed a petition to establish his paternity of the children. Id. at 324. Although the plaintiff “conceded that blood testing showed that he was not the biological father,” he “argued that he was an ‘equitable parent’ and that [the defendant] was equitably estopped from denying that he [wa]s the father.” Id. The trial court granted the defendant‘s motion for summary disposition of the paternity action pursuant to
Our Supreme Court also affirmed. Id. at 323, 337-338. Regarding the equitable parent doctrine, the Court
In this case, the parties agree that Devon was not conceived or born within the marital relationship between plaintiff and Killingbeck. The parties testified that plaintiff had intimate relationships with both Rosebrugh and Killingbeck around the time of Devon‘s conception and that plaintiff did not enter into her marital relationship with Killingbeck until March 2002, well over three years after Devon‘s birth. Accordingly, applying Van, we conclude that Killingbeck has no parental rights to Devon under the doctrines of equitable parenthood or equitable estoppel.
Although the record is not totally clear, it appears that the trial court‘s order granting Killingbeck parenting time as Devon‘s “de facto father” was based, at least in part, on the equitable parenthood and equitable
Had the trial court not revoked the acknowledgement of parentage, an order granting parenting time to Killingbeck would have been authorized. Such an acknowledgement “establishes paternity,” meaning that “the man signing as the father” has the “same relationship” with the child as he would have had if the child were “born or conceived during a marriage.”
Thus, the acknowledgement of parentage gave Killingbeck status as a parent, eligible to pursue parenting time under the Child Custody Act,
The record strongly suggests that the trial court‘s two decisions—to revoke the acknowledgement of parentage while, at the same time, granting Killingbeck parenting time rights as a “de facto father“—were interrelated and interdependent. In other words, it seems clear that the trial court revoked the acknowledgement only because it thought that, nonetheless, Killingbeck could be granted parenting time. As discussed above, the trial court thus acted on a mistaken understanding of the law.
Here, the trial court “apparently misunderstood the legal basis for” revoking the acknowledgement of parentage while also granting Killingbeck parenting time as a de facto father, “resulting in an incorrect conclusion that was violative of logic ....” Stepp v Dep‘t of Natural Resources, 157 Mich App 774, 779; 404 NW2d 665 (1987). “Where the trial court misapprehends the law to be applied, an abuse of discretion occurs” and reversal is warranted. Bynum v The ESAB Group, Inc, 467 Mich 280, 283; 651 NW2d 383 (2002).
Vacation of the order revoking the acknowledgement of parentage on the basis of this principle is especially appropriate here.3 Revocation of an acknowledgement of parentage, even in cases where there is “clear and convincing evidence ... that the man is not the father,” must be warranted by the “equities of the case.”
Accordingly, while we reverse the order granting Killingbeck parenting time as a “de facto father,” we also vacate the order revoking the acknowledgement of parentage as it may have been based on a mistake of law. On remand, the trial court shall reconsider the motion to revoke the acknowledgement in light of this opinion.
C
Rosebrugh also asserts that the trial court improperly considered his motion for custody and parenting time without conducting a full evidentiary hearing regarding Devon‘s best interests.4 We disagree.
Before an evidentiary hearing is held, a movant must first establish a change in circumstances. In order to establish a change of circumstances, a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child‘s well-being, have materially changed.
The requirement that a party seeking a change in custody first establish proper cause or a change of circumstances emanates from the Child Custody Act,
MCL 722.21 et seq. Specifically,MCL 722.27(1)(c) provides that if a child custody dispute has arisen from another action in the circuit court, the court may “[m]odify or amend its previous judgments or orders for proper cause shown or because of change of circumstances ....” On the basis of this language, this Court held in Dehring v Dehring, 220 Mich App 163, 165; 559 NW2d 59 (1996), quoting Rossow υ Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994), that if the movant does not establish proper cause or change in circumstances, then the court is precluded from holding a child custody hearing:“The plain and ordinary language used in
MCL 722.27(1)(c) ; MSA 25.312(7)(1)(c) evinces the Legislature‘s intent to condition a trial court‘s reconsideration of the statutory best interest factors on a determination by the court that the party seeking the change has demonstrated either a proper cause shown or a change of circumstances. It therefore follows as a corollary that where the party seeking to change custody has not carried the initial burden of establishing either proper cause or a change of circumstances, the trial court is not authorized by statute to revisit an otherwise valid prior custody decision and engage in a reconsideration of the statutory best interest factors.” [Emphasis added.]
These initial steps to changing custody—finding a “change of circumstance or proper cause” and not changing an “established custodial environment” without clear and convincing evidence—are intended to “erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Heid v AAASulewski (After Remand), 209 Mich App 587, 593; 532 NW2d 205 (1995). See also Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001) (recognizing the Legislature‘s intent in enacting the Child Custody Act was to prevent the removal of children from established custodial environments ” ‘except in the most compelling cases,’ ” quoting Baker v Baker, 411 Mich 567, 577; 309 NW2d 532 [1981]). The movant, of course, has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists before the trial court can consider whether an established custodial environment exists (thus establishing the burden of proof) and conduct a review of the best interest factors. Dehring, supra.
Here, there was no change of circumstances, either alleged or established. The original custody order in the divorce case awarded plaintiff sole physical custody. Although not an intervening party at that time, Rosebrugh, later, at the January 29, 2004, hearing, stipulated parenting rights for both himself and Killingbeck without challenging plaintiff‘s custody.6 The sole physical custody originally awarded to plaintiff was left unchanged in the resulting March 17, 2004, order. Less than five months later, on August 10, 2004, Rosebrugh moved for a “determination of custody” in the paternity case. It was undisputed that plaintiff had sole physical custody of Devon and had acted as Devon‘s primary caregiver for all his life. It was also undisputed that Rosebrugh visited his son regularly since Devon turned four years old and that he intended to continue acting as Devon‘s father. His primary complaint and focus in the hearing on the motion was the denial of parenting time for the time between Devon‘s birth and the age of four. There was no hint of any change of circumstances during the five-month period between March 17, 2004, and August 10, 2004.
D
Rosebrugh lastly contends that a conflict of interest existed during the trial court proceedings because he and plaintiff were represented by the same counsel. Again, we disagree.
“It is a well-established ethical principle that ‘an attorney owes undivided allegiance to a client and usually may not represent parties on both sides of a dispute.’ ” Evans & Luptak, PLC v Lizza, 251 Mich App 187, 197; 650 NW2d 364 (2002), quoting Barkley v Detroit, 204 Mich App 194, 203; 514 NW2d 242 (1994). The Michigan Rules of Professional Conduct (MRPC) generally prohibit an attorney from representing multiple clients when the representation of one client is directly adverse to, or may materially limit, the attorney‘s representation of another client.
Rosebrugh apparently asserts a conflict of interest arose from the fact that, at the January 2004 trial
Because the only instance of dual representation occurred during the period in which plaintiff and Rosebrugh shared the same interests, and because Rosebrugh failed to set forth with specificity the manner in which Simon‘s dual representation during the initial phase of the proceedings prejudiced Rosebrugh during the later custody, parenting time, and support proceedings, we conclude that no conflict of interest occurred. Rymal, supra at 319.
E
We find the dissenting opinion‘s concern about how our decision today affects Rosebrugh to be misplaced. In this appeal, no one is challenging either his right to parenting time or his responsibility for child support under the orders entered by the trial court and, accord-
CONCLUSION
We reverse the order granting Killingbeck parenting time as a “de facto father.” We also vacate the trial court‘s order revoking the acknowledgement of parentage and remand for reconsideration of that issue in light of that result. We do not retain jurisdiction.
KELLY, J., concurred.
COOPER, P.J. (concurring in part and dissenting in part). I do agree with the majority‘s disposition of some of the issues on appeal, including the majority‘s conclusion, although not its analysis, that the trial court improperly revoked Mr. Killingbeck‘s acknowledgment of parentage. However, in an effort to obviate the reasonable and necessary pronouncement that the trial court reached in this case—equitable parenting—the majority has created an absurd and illogical result. On remand, if the trial court determines not to revoke Mr. Killingbeck‘s acknowledgment of parentage, he will remain Devon‘s legal father with full rights of visitation. However, Mr. Rosebrugh, who would be legally responsible to support his biological child (as the majority has not reversed that order), would have no
It is well established that child custody disputes are equitable in nature.1 There is an extensive statutory framework under which child custody, parenting time, and support issues must be pursued.2 However, even the Legislature specifically recognized that these proceedings are equitable.3 It is the role of a trial judge to enter a verdict with fairness and equity4 and the paramount concern is the best interests of the child.5 The trial court exercised its equitable powers and granted parenting time to both Devon‘s biological and legal/equitable fathers. As Devon cannot have two legal fathers, the court‘s power to grant equitable relief was the only way to serve the best interests of this child, to grant him access to two father figures who wish to parent him. The majority abandons concern for the best interests of the child and ignores the equitable nature of child custody proceedings in favor of an obdurate adherence to judicial fundamentalism. However, even interpreting the statutes and case law by these inflexible standards, their decision is untenable.
Plaintiff and Mr. Killingbeck were involved for a number of years before Devon was conceived. They moved in together before Devon‘s birth and agreed to raise their son together. Believing Devon to be Mr. Killingbeck‘s biological child, the couple filed an acknowledgment of parentage shortly after Devon‘s birth. The couple proceeded to have two more children together (Devon‘s half-sisters) and subsequently married. In early 2002, plaintiff and Mr. Killingbeck began having marital problems, and plaintiff filed for divorce in September. In October of 2002, when Devon was four years old, plaintiff informed Tony Rosebrugh, a former boyfriend, that she believed that he may be Devon‘s biological father. Mr. Rosebrugh submitted to a paternity test, which revealed that he was, in fact, Devon‘s biological father.6 However, knowing this result, plaintiff still stipulated the entry of the judgment of divorce in May of 2003, indicating that Mr. Killingbeck was Devon‘s father, awarding him joint legal custody and liberal parenting time, and ordering him to pay child support.
II. ACKNOWLEDGMENT OF PARENTAGE
By joining with plaintiff to complete an acknowledgment of parentage, Mr. Killingbeck was considered to be Devon‘s natural father.7 The acknowledgment of parentage establishes paternity, and it “may be the basis for court ordered child support, custody, or parenting time without further adjudication.”8 While an acknowl-
For reasons only she can know, plaintiff joined with Mr. Rosebrugh in October of 2003 to file a paternity action and petition the court to revoke Mr. Killingbeck‘s acknowledgment of parentage. The trial court granted this petition in January of 2004. However, the trial court refused plaintiff‘s attempts to deny Mr. Killingbeck his rights to parent Devon, finding him to be Devon‘s “de facto” father. Although I agree with the trial court that Mr. Killingbeck had an equitable right to parent Devon, I believe that the trial court erred in revoking the acknowledgment of parentage in the first instance.
(1) The mother or the man who signed the acknowledgment, the child who is the subject of the acknowledgment,
or a prosecuting attorney may file a claim for revocation of an acknowledgment of parentage .... A claim for revocation may be filed as a motion in an existing action for child support, custody, or parenting time in the county where the action is and all provisions in this act apply as if it were an original action. (2) A claim for revocation shall be supported by an affidavit signed by the claimant setting forth facts that constitute 1 of the following:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress in signing the acknowledgment.
(3) ... The party filing the claim for revocation has the burden of proving, by clear and convincing evidence, that the man is not the father and that, considering the equities of the case, revocation of the acknowledgment is proper.12
A petitioner may file a motion to revoke an acknowledgment of parentage in an existing action. Although plaintiff and Mr. Rosebrugh knew that Mr. Killingbeck was not biologically related to Devon one month after plaintiff filed her complaint for divorce, they took no action to revoke the acknowledgment during the divorce proceedings. The judgment of divorce naming Mr. Killingbeck as Devon‘s father was entered months before plaintiff and Mr. Rosebrugh finally filed their petition. Plaintiff made no attempt to amend that portion of the judgment naming Mr. Killingbeck as Devon‘s legal father until more than a year after the
Furthermore, plaintiff did not allege sufficient grounds for revocation of the acknowledgment of parentage or to set aside the judgment of divorce.17 Plaintiff truthfully asserted at the time Mr. Killingbeck signed the acknowledgment of parentage that she believed him
Most importantly, plaintiff failed to establish by clear and convincing evidence that revocation of the acknowledgment was proper “considering the equities of the case.” There is more to fatherhood than mere biology.19 Mr. Killingbeck ” ‘demonstrate[d] a full commitment to the responsibility of parenthood’ ” in Devon‘s life and formed “a substantial parent-child relationship” with
III. FATHERS’ RIGHT TO PARENTING TIME
Although the trial court improperly revoked the acknowledgment of parentage, the court properly granted Mr. Killingbeck parenting time with Devon. Pursuant to Michigan law, a child‘s rights in regard to custody, support, and parenting time must be determined in accordance with the Child Custody Act.23 As a party who acknowledged parentage of a child born out of wedlock, and who was proclaimed to be Devon‘s legal father by the final judgment of the court, Mr. Killingbeck had standing to seek parenting time pursuant to the act.24 It is well established that the paramount concern in resolving child custody and parenting time disputes is the best interests of the child.25 Pursuant to the plain language of the act, it “is equitable in nature and shall be liberally construed and applied to establish
In an attempt to remedy the inequity of this situation, and to protect Devon from the whims of his mother, the trial court recognized Mr. Killingbeck‘s right to parent the child that he had raised from birth. Innumerable states have recognized the rights of de facto, or psychological, parents.27 A de facto or psycho-
The best interests factors include, in relevant part:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
* * *
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
* * *
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
* * *
(l) Any other factor considered by the court to be relevant to a particular child custody dispute. [
MCL 722.23 .]
logical parent is a person who is not biologically related to a child, but has lived with and raised the child as his or her own, taking on all the duties and benefits of parenthood.28 Mr. Killingbeck was Devon‘s legally acknowledged natural father and is his legal father. Mr. Killingbeck lived with and raised Devon from infancy. Devon clearly bonded with Mr. Killingbeck over his lifetime and, psychologically, views Mr. Killingbeck as his father. Nothing in our case law requires a child to be torn from his legal and psychological parent. To the contrary, such upheaval cannot be in the child‘s best interests.29
I disagree with the majority that Van v Zahorik30 forecloses reliance on equitable principles in this case. As acknowledged by the majority, Van is distinguishable from the current case. In Van, the Michigan Supreme Court limited the doctrine of equitable parenthood to
However, the Court in Van did not limit the rights of legal fathers to pursue parental rights. As in this case, Mr. Van believed himself to be the biological father of his children and raised them accordingly. Unlike Mr. Killingbeck, however, Mr. Van never pursued the means to become the legal parent of his children.33 Mr. Killingbeck did sign an acknowledgment of parentage, became Devon‘s legally acknowledged natural father, and was named as Devon‘s legal parent in the parties’ judgment of divorce. As a legal parent, he had full rights to seek visitation with his child pursuant to the Child Custody Act, limited only by a determination of what visitation was in Devon‘s best interests.34 Although the parties were not married at the time of Devon‘s conception, or the conception of their subsequent children, plaintiff and Mr. Killingbeck did marry and raise their children together as one family. It is antithetical to “Michigan‘s public policy favor[ing] marriage” to divest legal parents of their natural right of parenthood merely because they married later rather than sooner.35
Accordingly, I would reverse the trial court‘s order revoking the acknowledgment of parentage and affirm the trial court‘s orders recognizing Mr. Killingbeck‘s right to parent his child. I would also affirm the trial court‘s orders granting parenting time to Mr. Rosebrugh.
Notes
(a) Mistake, inadvertence, surprise, or excusable neglect.
(b) Newly discovered evidence, which by due diligence could not have been discovered in time to move for a new trial under
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct by an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.
“an adult, not the child‘s legal parent, who for a period that is significant in light of the child‘s age, developmental level, and other circumstances, has resided with the child, and ... for reasons primarily other than final compensation, and with the consent of a legal parent to the formation of a de facto parent relationship regularly has performed ... a majority of the caretaking functions for the child.” [Youmans, supra at 776 n 3, quoting ALI Principles of the Law of Family Dissolution, § 2.03(1) (Tent Draft No 3 Part 1 1998).]See also Karner, supra at 929.