Custody to others.

In Holmes v Richardson, Unpub Per Curiam Opinion of the Court of Appeals, (#322096, 1/13/2015) the Court of Appeals examined the question of standing and reiterated the right of the family court to award custody to one or more of the parties involved or to others.

“[I]f a third party lacks standing, he or she cannot become a party to a custody dispute.” In re Anjoski, 283 Mich App 41, 63 (2009).1 Generally, to have standing, “a party must have a legally protected interest that is in jeopardy of being adversely affected.” Barclae v Zarb, 300 Mich App 455, 483 (2013). In child custody disputes, the Legislature has strictly limited those third persons, or individuals “other than a parent,” who have standing to bring an action for the custody of a child. Anjoski, 283 Mich App at 50-51; see also MCL 722.22(j) (defining “third person”). Under MCL 722.26b(1), “a guardian or limited guardian of a child has standing to bring an action for custody of the child,” with certain restrictions.

MCL 722.26c(1)(b) provides that a third person may bring a custody action for a child if all of the following are true: (i) The child’s biological parents have never been married to one another. (ii) The child’s parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under court order. (iii) The third person is related to the child within the fifth degree by marriage, blood, or adoption.

A third party does not have standing because he lives with the child. Anjoski, 283 Mich App at 50-51, citing Bowie v Arder, 441 Mich 23, 42 (1992). A third party may not “create a custody dispute by simply filing a complaint in circuit court alleging that giving legal custody to the third party is in the child’s best interests.” Id. at 51, quoting Heltzel v Heltzel, 248 Mich App 1, 28-29 (2001) (quotation marks omitted).

Even if one does not have standing, the trial court can still possibly award them custody. See Anjoski, 283 Mich App at 62-63; Heltzel, 248 Mich App at 29-30.  MCL 722.27(1)(a) provides: (1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following: (a) Award the custody of the child to 1 or more of the parties involved or to others . . . . [Emphasis added.] The words “or to others” means that, after a custody dispute has been properly submitted to the trial court, the court may award custody to others, even individuals who do not have standing, if it is in the child’s best interests. Anjoski, 283 Mich App at 62-63. “There is no limiting language in the statute that conditions an award ‘to others’ to only those ‘others having standing.’ ” Id. “Rather, the statute’s sole limitation is that the award be in the child’s best interests, after weighing the parental presumption, applicable burdens of proof, and the statutory best interests factors.” Id. at 63. 

If the custody dispute is between a parent and third parties, “the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.” MCL 722.25. Nonetheless, the court must still make specific findings of fact with respect to each of the best interest factors. See Grew v Knox, 265 Mich App 333, 337 (2005); Schlender v Schlender, 235 Mich App 230, 233 (1999); see also MCL 722.23. In addition, “the trial court should consider up-to-date information and any other changes in circumstances arising since the trial court’s original custody order.” Kessler v Kessler, 295 Mich App 54, 63 (2011) (citation and internal quotation marks omitted).