                             STATE OF MICHIGAN

                             COURT OF APPEALS



JOSEPH RICHARD DEMSKI,                                              FOR PUBLICATION
                                                                    March 5, 2015
               Plaintiff-Appellee,

v                                                                   No. 322193
                                                                    Berrien Circuit Court
CASSIDIE ANN PETLICK, f/k/a CASSIDIE                                LC No. 12-003323-DP
ANN POINTER, and JEFFREY PETLICK,

               Defendant-Appellants.


Before: BOONSTRA, P.J., and DONOFRIO and GLEICHER, JJ.

GLEICHER, J. (dissenting).

       During the first two-and-a-half years of her life, MP lived solely with her married
parents, Cassidie and Jeffrey Petlick. Jeffrey’s awareness that he was not MP’s biological father
did nothing to dim his devotion to his daughter.

        Joseph Demski, MP’s biological father, sought to establish a role for himself in MP’s life.
The trial court considered Demski’s paternity claim under the Revocation of Paternity Act
(RPA), MCL 722.1431 et seq., and convened a two-day evidentiary hearing. The trial court
ruled that MP was born out of wedlock and entered an order of filiation in Demski’s favor,
thereby disestablishing Jeffrey’s paternity and extinguishing his parental rights, despite that
Jeffrey continues to live with his wife and MP. Six months later, without holding an additional
hearing, the trial court awarded Demski joint legal custody of MP and parenting time.

        The majority detects no errors in the trial court’s rulings or procedure. I respectfully
dissent. I believe that Demski was obligated to produce clear and convincing evidence that
declaring MP born out of wedlock would serve the child’s best interests, and that this showing
was not made. Moreover, the trial court’s ex parte consideration of expert testimony and its
failure to hold a separate evidentiary hearing to consider the child’s best interests contravened
the Child Custody Act (CCA), MCL 722.21 et seq., mandating reversal of its joint legal custody
and parenting-time decisions.

                              I. THE PATERNITY PROCEEDINGS

       The RPA permits a court to determine that a child born to married parents was “born out
of wedlock” when certain circumstances are shown. MCL 722.1441(3)(c). That Cassidie was
not married at the time of MP’s conception and that Demski filed his revocation of paternity
                                                -1-
action within three years of MP’s birth supplied the predicate grounds for Demski’s claim. Once
established, those facts empowered the trial court to gather evidence of MP’s best interests in
deciding whether to declare MP a child “born out of wedlock.”

        A child’s best interests are embedded within the Act: “A court may refuse to enter an
order setting aside a paternity determination or determining that a child is born out of wedlock if
the court finds evidence that the order would not be in the best interests of the child.” MCL
722.1443(4). Notably, the Legislature placed the best-interest inquiry ahead of a determination
that a child was born out of wedlock. Only after taking into account a child’s best interests is a
court vested with authority to “[m]ake a determination of paternity and enter an order of filiation
as provided under . . . MCL 722.717.” MCL 722.1443(2)(d).

        DNA testing revealed that Demski fathered MP. MCL 722.1445 specifies that the clear
and convincing standard of proof applies regarding the evidence that an alleged father “is the
child’s father[.]”1 DNA proof of paternity easily satisfies that standard. However, the RPA
endorses that genetics alone do not a father make. “The results of blood or tissue typing or DNA
identification profiling are not binding on a court in making a determination under this act.”
MCL 722.1443(5). Furthermore, the Legislature explicitly authorized a trial court to “refuse to
enter an order setting aside a paternity determination or determining that a child is born out of
wedlock if the court finds evidence that the order would not be in the best interests of the child.”
MCL 722.1443(4) (emphasis added).2 The Act makes no mention of the standard of proof



1
  “If an action is brought by an alleged father who proves by clear and convincing evidence that
he is the child’s father, the court may make a determination of paternity and enter an order of
filiation as provided for under . . . MCL 722.717.” MCL 722.1445.
2
 MCL 722.1443(4) further dictates that “[t]he court may consider the following factors” when
determining whether a child is born out of wedlock:

       (a) Whether the presumed father is estopped from denying parentage because of
       his conduct.

       (b) The length of time the presumed father was on notice that he might not be the
       child’s father.

       (c) The facts surrounding the presumed father’s discovery that he might not be the
       child’s father.

       (d) The nature of the relationship between the child and the presumed or alleged
       father.

       (e) The age of the child.

       (f) The harm that may result to the child.


                                                -2-
applicable to the court’s best-interest determination under the RPA. The majority assumes that
the preponderance standard applies. In my view, the appropriate standard is that of clear and
convincing evidence.

        This issue comes to us by way of the Petlicks’ argument that the trial court failed to
assign to Demski “the burden of persuasion.” I agree with the majority that the record generally
refutes that proposition. The Petlicks further contend that based on “the presumption in favor of
maintaining the child’s established custodial environment,” Demski was required to present
“clear and convincing evidence” that MP’s best interests would be served by revoking Jeffrey’s
presumed paternity. The majority observes that “the trial court indicated that it had applied a
clear and convincing evidentiary standard when it reached its determination regarding the best
interests of the child under MCL 722.1443(4).” The record is not nearly so straightforward.
And in this case, Demski’s evidence concerning MP’s best interests fell well short of even an
evidentiary preponderance.

        Indisputably, the trial court used a clear and convincing standard when ruling that
Demski had demonstrated “that he is the child’s [biological] father.” The Legislature plainly
prescribed that “clear and convincing” evidence must control a court’s paternity determination in
MCL 722.1445. The DNA evidence supporting Demski’s parentage went unchallenged. Hence,
the trial court’s distinct articulation that clear and convincing evidence dictated its paternity
finding is unsurprising. Whether the trial court employed a clear and convincing standard when
it evaluated the child’s best interests under the RPA represents an entirely different question.

        The trial court prefaced its discussion of the statutory factors involving a child’s “best
interests” as follows:

               The plaintiff has timely filed a complaint to determine parentage, custody,
       child support, and parenting time. Accordingly MCL 722.1443(13)4 [sic MCL
       722.1443(4)] directs that the Court may refuse to enter an order determining that a
       child is born out of wedlock if the Court finds evidence that the order would not
       be in the best interest the child.

The court proceeded to discuss best-interest factors (d), (f), and (g). After reviewing the
evidence related to these factors, the court reiterated that it had found “by clear and convincing
evidence” that Demski was MP’s “biological father,” but made no specific comment as to the
standard of proof it had applied when analyzing the statutory factors. Rather, the court appeared
to separate its “clear and convincing” biology finding from its best-interest determinations:


       (g) Other factors that may affect the equities arising from the disruption of the
       father-child relationship.

       (h) Any other factor that the court determines appropriate to consider.

The parties agreed that factors (a), (b), and (c) were not applicable to this case.




                                                 -3-
               The Court is fully persuaded, having placed as indicated, the
       determination of what weight’s to be given to the testimony of witnesses, all
       exhibits, all testimony, and clearly that of the expert witness. In light of the
       direction and the new direction and law for the State of Michigan, the Court is
       going to grant the petition of the plaintiff.

              With that, an order, Mr. Banyon, consistent with [the] directive of MCL
       722.1445 in terms of the termination of paternity; again, by clear and convincing
       evidence that your client is indeed the biological father and the Court having
       made specific findings relative to the other factors of the new act, consistent with
       MCL 722.717 Section 7, an order for paternity would enter. . . .

A fair reading of this ruling leaves open to question whether the trial court determined that clear
and convincing evidence, rather than an evidentiary preponderance, supported its best-interest
finding under the RPA.

        Regardless of which standard of proof applies, I agree with the majority that Demski bore
the burden of persuading the court that determining MP to have been born out of wedlock would
serve her best interests. During his case-in-chief, Demski presented virtually no evidence
addressing MP’s best interests. His testimony focused on himself and the historical events
surrounding MP’s conception and birth, and his justifications for having had no contact with the
child for most of her life. His girlfriend’s testimony centered on the couple’s pit bull and the
reasons that it would pose no danger to MP. She also assured the court that the couple had
discontinued using marijuana. Demski’s mother testified that he had never harmed a child, and
that she was available to assist Demski “in whatever his needs may be.”

        Had the trial ended with Demski’s proofs, the record would not have supported a best-
interest finding in Demski’s favor. Demski presented precious little evidence concerning MP’s
needs or interests. Only a miniscule quantum of testimony related to Demski’s plan for dealing
with MP’s cognitive and emotional responses to the insertion of a new father in her young life.
Aside from his cellular contribution to MP’s conception, Demski offered no evidence that
disestablishing Jeffrey’s paternity would advance the child’s best interests.

       The Petlicks’ evidence more directly addressed the RPA’s best-interest factors, primarily
via the testimony of psychotherapist Robin Zollar. No discussion ensued during the trial,
however, regarding the standard of proof applicable to the trial court’s evaluation of Zollar’s
testimony, or that of any other witnesses, regarding MP’s best interests. To the extent the
majority endorses a preponderance standard, I disagree.

         Given that RPA proceedings implicate weighty interests for both parents and children, I
believe that the clear and convincing standard must govern the best-interest determination.
Where a statute is silent as to the applicable standard of proof, the issue has “traditionally been
left to the judiciary to resolve.” Woodby v Immigration & Naturalization Serv, 385 US 276, 284;
87 S Ct 483; 17 L Ed 2d 362 (1966). The standard of proof utilized by a court “reflects not only
the weight of the private and public interests affected, but also a societal judgment about how the
risk of error should be distributed between the litigants.” Santosky v Kramer, 455 US 745, 755;
102 S Ct 1388; 71 L Ed 2d 599 (1982). “The function of a standard of proof, as that concept is

                                                -4-
embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder
concerning the degree of confidence our society thinks he should have in the correctness of
factual conclusions for a particular type of adjudication.’ ” Addington v Texas, 441 US 418, 423;
99 S Ct 1804; 60 L Ed 2d 323 (1979) (citation omitted). “[W]hile private parties may be
interested intensely in a civil dispute over money damages, application of a ‘fair preponderance
of the evidence’ standard indicates both society’s ‘minimal concern with the outcome,’ and a
conclusion that the litigants should ‘share the risk of error in roughly equal fashion.’ ” Santosky,
455 US at 755 (citation omitted).

        I readily acknowledge that when a statute is silent regarding the applicable standard of
proof, the default position is an evidentiary preponderance. However, the United States Supreme
Court has “mandated an intermediate standard of proof—‘clear and convincing evidence’—when
the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more
substantial than mere loss of money.’ ” Id. at 756, quoting Addington, 441 US at 424. The
interests at stake here implicate the very essence of being a parent: the right to make decisions
regarding a child’s care, control, health, education and association, and the ability to maintain
inviolate a family’s integrity. “A paternity suit, by its very nature, threatens the stability of the
child’s world.” McDaniels v Carlson, 108 Wn2d 299, 310; 738 P2d 254 (1987). Permanently
stripping Jeffrey of his fatherhood of MP deprives both MP and Jeffrey of their mutual liberty
interests in a continuing parent-child relationship. In my view, the parties’ competing rights and
interests qualify as “particularly important” and “more substantial than mere loss of money,”
necessitating application of a standard of proof more demanding than a mere preponderance.
And I agree with the Washington Supreme Court in McDaniels: “Where these rights come into
conflict, the rights of the child should prevail.” Id. at 311.

        I acknowledge that in cases involving the termination of parental rights, the
preponderance of the evidence standard applies to a court’s best-interest determination. In Re
Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). In so holding, this Court stressed that the
clear and convincing standard applies to the first stage of termination proceedings, in which a
court determines whether the moving party has demonstrated a statutory ground supporting
termination of a parent’s constitutional rights to the care and custody of a child. Id. at 86.
Applying the due process analysis set forth in Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47
L Ed 2d 18 (1976), the Moss Court explained that during the termination stage, “the use of error-
reducing procedures[] such as the heightened standard of proof of clear and convincing
evidence” favors the constitutional interests at stake. Moss, 301 Mich App at 87. Once a finding
of statutory grounds for termination has been made, however, “the interests of the child and the
parent no longer coincide, and the need for a heightened standard of proof is not present in the
best-interest stage.” Id. at 88.

        The procedure set forth in the RPA meaningfully differs from that of a termination case.
Under the RPA, a trial court must consider a child’s best interests when considering whether to
declare a child born out of wedlock. MCL 722.1443(4). This initial stage of RPA proceedings
corresponds to the termination stage in an action brought under MCL 712A.19b. As in an action
seeking the termination of parental rights, a presumed father under the RPA maintains a liberty
interest in the custody of a child—and the child in the custody of her parent—until clear and
convincing grounds justify severing that relationship. And the RPA clearly contemplates that a


                                                -5-
judge may find that despite clear and convincing DNA evidence of paternity, a child’s best
interests would be jeopardized by the interruption of her stable and intact family life.

        Although the Child Custody Act (CCA), MCL 722.21 et seq., applies in a different
setting, it guides my reasoning regarding the appropriate standard of “best interests” proof in a
revocation of paternity case.3 MCL 722.25(1) directs that “If the child custody dispute is
between the parent or parents and an agency or a third person, 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 shown by clear and convincing evidence.” The Supreme Court elaborated in Hunter
v Hunter, 484 Mich 247, 265; 771 NW2d 694 (2009): “A third party seeking custody 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.”
Similarly, a court may not “issue a new order so as to change the established custodial
environment of a child unless there is presented clear and convincing evidence that it is in the
best interest of the child.” MCL 722.27(1)(c). Our state’s jurisprudence has “consistently
recognized” that the presumption of legitimacy arising from a child’s birth to a married mother
may be overcome only by a showing predicated on clear and convincing evidence. In re KH,
469 Mich 621, 634-635; 677 NW2d 800 (2004). As MP’s legal father, Jeffrey was entitled to a
presumption that MP’s best interests would be served by his continuation in that role. See MCL
722.25(1).

        In enacting the RPA, the Legislature left the statutory presumptions intact. Despite that
the RPA expands the right of putative fathers to challenge the paternity of a child born within a
marriage, the law rebuttably presumes that a child’s best interests are served by maintaining that
relationship, regardless of biological “truth.” Our Supreme Court has never hesitated to assign a
clear and convincing standard of proof to the evidentiary task of rebutting a statutory
presumption. See Reed v Breton, 475 Mich 531, 541; 718 NW2d 770 (2006).

        At the outset of these proceedings, Demski was not MP’s parent. Thus, until the trial
court entered its order of filiation, Demski remained a “third person.” See MCL 722.22(j). Even
armed with the DNA results confirming his biological connection, Demski had no inherent right
to a declaration of his paternity. MCL 722.1443 subsections (4) and (5) underscore that DNA is
not determinative in an action brought under the RPA. By commanding consideration of a
child’s best interests as part and parcel of the RPA inquiry, the Legislature placed the child’s
interests on a footing at least equal to that of DNA. Moreover, the statute’s structure establishes
that the best-interest determination must precede entry of an order declaring that a child was



3
  Our Supreme Court similarly drew upon other statutes when it determined the standard of proof
for actions brought under the Whistleblowers Protection Act, MCL 15.361 et seq.: “Because
whistleblower claims are analogous to other antiretaliation employment claims brought under
employment discrimination statutes prohibiting various discriminatory animuses, they ‘should
receive treatment under the standards of proof of those analogous [claims].’ ” Debano-Griffin v
Lake Co, 493 Mich 167, 175-176; 828 NW2d 634 (2013) (citation omitted, alteration in
original).


                                                -6-
born out of wedlock. The parental rights and concomitant rights of an alleged father (such as
Demski) emerge only after a court has conducted a best-interest inquiry.

        The RPA’s ordering of priorities compels dual conclusions: (1) during the RPA
proceedings, Demski’s interest in establishing his paternity was subordinate to MP’s best
interests, and (2) as MP’s legal father, Jeffrey enjoyed a presumption that MP’s best interests
would be served by maintaining the status quo. In structuring the RPA in this fashion, the
Legislature implicitly declared that a child’s best interests may outweigh a genetic link between a
child and a stranger. And although the Legislature did not specify the standard of proof
applicable to best-interest determinations under the RPA, it did not enact the statute in a vacuum.
The principles that only clear and convincing evidence of a child’s best interests justify
disrupting an established environment or depriving a legal father of his paternal rights are firmly
fixed in family law. I cannot conclude that the Legislature intended to abandon the heightened
standard of proof in a directly analogous custodial context simply because it failed to reiterate it
in the RPA.

        Orders entered under the RPA have grave and far-reaching consequences.
Disestablishing Jeffrey’s paternity renders him a legal stranger to MP, despite that Jeffrey and
Cassidie will continue to raise her as parental partners and will appear to the world (such as
MP’s school and friends) as her parents. As Judge Kirsten Frank Kelly pointed out in Helton v
Beaman, 304 Mich App 97, 126; 850 NW2d 515 (2014) (KF KELLY, J., concurring), if Cassidie
were to die, Jeffrey “would . . . have to seek custody as a third party and there is no guarantee
that he would succeed or even have standing.” Regardless of subsequent custody or parenting
time decisions, inserting a new father into a child’s life is inherently destabilizing. MP looked to
Jeffrey for fulfillment of her needs. She understood that he, and only he, was her dad.
Disconnecting and thereby forever altering that relationship risks incalculable damage to a
child’s development. In my view, the Legislature recognized as much by explicitly permitting a
court to disregard biology and to enforce the presumption favoring stability and marriage.

        Thus, I distill from the RPA’s framework and its statutory background that the reciprocal
rights of a married father and his child may not be disrupted absent clear and convincing proof
that such infringement serves a child’s best interests. Adoption of this higher standard of proof
ensures that the evidence supporting a revocation of paternity decision meets “the degree of
confidence our society thinks [a factfinder] should have in the correctness of factual
conclusions” for this type of adjudication. Santosky, 455 US at 755.

        Furthermore, the evidence presented during the RPA hearing did not clearly and
convincingly demonstrate that MP’s best interests would be served by severing Jeffrey’s paternal
rights and inserting Demski in that role. Even under a preponderance standard, the trial court’s
best-interest findings contravened the great weight of the evidence.

        The court recognized that under factor (d), Jeffrey and his daughter “have a strong
father/daughter bond of reciprocal love evidenced by tender and affectionate interaction,” and
that Demski had no established relationship with the child. This factor militated against
revoking Jeffrey’s paternity. Factor (e) requires consideration of “the age of the child.” The trial
court observed, “There is no contest to the date of birth, and almost two and a half year old age
for [MP].” This “finding” omits mention of the testimony of psychologist Robin Zollar

                                                -7-
regarding the cognitive abilities and emotional capacities of two-year-old children. In my view,
Zollar’s unchallenged testimony supports that affiliating Demski would not serve MP’s best
interests.

       Zollar explained that at MP’s age, “children are still very dependent physically and
emotionally on a parental caretaker[.]” Further, Zollar stressed, “it is also an age that is
influenced by the ability to communicate and the ability to receive information.” Although MP
could speak using three-word sentences, “her receptive language skills and her expressive
language skills are at a point where she can’t always express herself or always understand,” as is
“normal” at her age. Zollar explained that at two-and-a-half years of age, a child’s receptive
language skills do not encompass the idea of a new parent, and the child lacks “the ability to
resolve conflicts or feelings.” Accordingly, a two-and-a-half-year old is “less likely” to
understand the role of a new parent. “[T]hey can’t talk about it,” Zollar explained, because they
have not yet developed the required language skills. A child’s inability to articulate confusion
and distress may precipitate very real trauma. Zollar highlighted that “change in the parental
family structure” may produce “mental anxiety. It can cause some acting out behaviors, such as
problems with sleep, different things for different children. Frustration and anger.” Zollar
continued:

                Two and a half can be a pretty frustrating anger age anyway, because
       they’re starting to, what we call “individuate,” they’re beginning to separate and
       see themselves as a little being, as opposed to just a part of the parents. . . . And
       so there’s a lot going on at . . . that particular developmental age, with not the
       ability to be able to utilize language to resolve it or to understand it . . . .

         In my view, the great weight of the evidence supported Zollar’s testimony that because of
her age, MP’s best interests would not be served by opening the door to a situation she lacked the
ability to understand or discuss. Furthermore, the trial court’s failure to consider the age-specific
evidence addressing MP’s best interests constitutes legal error.

        Zollar also provided the most useful evidence regarding factor (f), “[t]he harm that may
result to the child.” On direct examination, Zollar admitted that she had not met Demski, and
could not offer opinions regarding him in particular. Generally, she offered, introducing a new
person “as an individual” would be “less confusing” than introducing the new person as a parent.
Zollar’s testimony continued as follows:

       They have a mom and they have a dad, and I think it can be very difficult for kids
       when somebody says, “Oh, I’m your other dad” or “I’m your real dad” or “I’m
       your dad too.” I think that’s very confusing, particularly when you’re fairly
       young. I think it’s pretty hard to put that into any perspective. I think that
       different issues happen when you’re older and that happens, but I think it’s pretty
       basic when you’re two and [a] half years old that that’s going to be pretty
       confusing.

                                               ***




                                                -8-
               Q. So let’s get back to the factor. Do you have an opinion in this case,
       again based on observation, experience and all that, whether introducing a new
       father figure, be that Mr. Demski or anyone else, would cause harm to [MP]?

               A. It could.

               Q. . . . And . . . what type of harm could result?

                A. . . . I think given her age, I think, and her reticence around new people,
       I think that could cause her to feel pretty insecure and fairly threatened and pretty
       confused. And the confusion may cause the feeling threatened, but I think it’s
       still going to leave her feeling pretty vulnerable.

         Zollar elaborated that adding a new “parental figure when a parental figure already exists
. . . can sometimes create some alienation between the child” and the original parenting figure.
The concomitant confusion “can lead to some anger” or “pulling back” from the original father.
Additionally, Zollar emphasized, introducing a new parent can cause “some real anxiety,
particularly dependent on how that introduction is made, how that relationship is expected or
requested to proceed.” She concluded: “And sadly, there are many times that the child isn’t
taken into consideration, the parents are.”

        On cross-examination, Zollar reiterated that introducing a new parent could harm a child,
while admitting that it could also benefit the child. She clarified that if the new parent supports
the child emotionally “[f]or a sustained period of time,” the child could benefit. As Zollar’s
testimony concluded, the Petlicks’ attorney (Kurt Armstrong) returned to the issue of harm to
MP:

             Q. Is it more likely that harm would result to [MP] by introducing any
       new parent figure at this time in her life?

               Mr. Banyon: Objection. I don’t believe she can form an opinion on that.

               Mr. Armstrong: Well, I think she can.

               The Court: Now, I - - the Court thinks she can, based on the foundation
       that’s there and then her expert - - we’ll overrule the objection.

               Now, if you can’t, we’ve got a problem. Can you answer the question?

               [Zollar]: I’ll try. I think it depends on the things that I talked about
       earlier: the commitment, the way it is done, and the sustainability and the
       willingness of all the parties to work towards this happening in a healthy way. I
       have some cases that I’m working with right now with preschool-age children
       where there are very similar issues. And those are not new issues, I’ve had those
       issues for years that I’ve had to work with. But so much is dependent on that
       commitment. The motive of the adults involved, the commitment, the ability to
       listen and learn when suggestions are given by someone whose primary interest is
       the child.

                                                -9-
               Grownups can take care of themselves, little kids can’t. And so they need
       somebody that can act as an advocate for that relationship going in a healthy
       direction. And I think if that is available, I think it can be a very good thing for a
       child. I think if somebody says, “Oh, well, yeah, we’ll just her [sic] for an hour or
       so and she’ll be with . . . Uncle Bob and Aunt Suzie and dad and she’ll be fine,” I
       think that is not taking into account the child’s needs. I think that is only focusing
       on the adult needs and I think that is wrong; because she has no way to say, “No,
       I’m not going to do it.” She has no way to ask questions at this point. She has no
       way to understand.

               So it’s nothing personal about any individual. It’s what’s going to be best
       for this child. And I - - I strongly believe that, because I’ve seen really awful
       things happen when that doesn’t happen.

       Based on this testimony, the trial court found:

       The testimony found to be most reliable relative to determining harm is that of the
       expert witness. . . .

               Robin Zollar conducted three sessions, meeting one each with the
       defendants individually and a joint session including the minor, providing
       opportunity to observe the minor’s interactions with defendants. She confirmed
       that the minor is initially reticent around new people. Her responses however to
       the questioning related directed to the harm factor address less the issue of
       introduction of plaintiff’s interaction with the minor, but rather the question of
       how that would occur and expectations upon the minor. These are factors she was
       not afforded the opportunity to ask the plaintiff but would have desired to do so.

               Her essential concerns articulated are first the limited verbal skills of the
       minor, and secondly, the willingness of adults to get along; their commitment.
       She did finally opine that [MP] could benefit from sustained commitment from
       the alleged father.

        That MP “could benefit from sustained commitment from the alleged father” hardly
qualifies as clear and convincing evidence that MP would benefit from a change in her paternity,
or that she would not be harmed by the profound disruption of her life occasioned by the
introduction of a new parent. In my estimation, the trial court’s resolution of the harm inquiry
rested on speculation, not proof. Stated alternatively, the evidence was in equipoise.
Substituting Demski as MP’s new father could hurt MP, or it might benefit her.

        It bears emphasis that Demski bore the burden of proving that it was in MP’s best
interests to revoke Jeffrey’s paternity and to substitute Demski as her new father. Demski
brought forward no evidence regarding MP or her interests. And Demski offered no evidence
that the very real harms Zollar described could be avoided or mitigated. Indeed, Demski never
even acknowledged awareness of any emotional dangers for MP attendant to his parenthood
quest.



                                               -10-
        The majority correctly observes that “Zollar’s expert testimony supported both a
conclusion that MP could be harmed by [Demski’s] introduction into her life and also that his
introduction could benefit her.” In other words, the majority, too, views the evidence on this
score as equally balanced. I believe the majority overlooks the obvious: Demski failed to carry
his burden of proof on this factor.

       Factor (g) requires a court to consider “[o]ther factors that may affect the equities arising
from the disruption of the father-child relationship.” The court acknowledged that this factor
required it to consider “identifiable emotional, physical, and financial” equities. The court’s
discussion of this factor was limited to the following paragraph:

               Consistent with the testimony of the defendants, they are committed to
       each other, and each to [MP], whether Jeffrey Petlick is the identified legal father
       because of his bond of love for her and he will continue to support emotionally,
       financially, and provide the protections she requires. Equitably for the minor by
       law, the plaintiff would be required to provide for [MP]’s financial support.

        While Jeffrey’s multi-faceted commitment to MP is both admirable and relevant, the
court avoided discussion of the evidence actually submitted on this score. Zollar expressed that
if a new parent “is willing to make a very serious ongoing workable commitment where they are
willing to work with the other caretakers, all the other caretakers, without being adversarial, then
it can be a very good thing for children.” Unrebutted evidence established that Demski’s desire
to parent MP had been inconsistent, at best. Text messages sent by Demski demonstrate that on
more than one occasion, he expressed interest in “signing over” his parental rights to avoid
paying child support. One message states: “[I] was told to plan on selling my house to afford
this.” Demski answered affirmatively when asked on cross-examination:

       You acknowledge that . . . your actions went from starting out, ‘I’m involved, I
       went to the doctor’s office,’ to ‘I don’t want to be involved’ in November. ‘I
       want to have my rights terminated’ or ‘I don’t want to have any rights, I don’t
       want to pay any child support’, correct?

The record simply does not substantiate a clear or convincing likelihood, or an evidentiary
preponderance, that Demski would commit himself and his resources over the long term. His
track record of commitment to MP is hardly consistent or reassuring.

        While the trial court’s exercise of its discretion in considering the RPA’s best-interest
factors should be afforded deference, I believe that the evidence clearly preponderates against the
trial court’s factual findings under factors (e), (f), and (g). Because the great weight of the
evidence supported that MP’s best interests would not be served by disestablishing Jeffrey’s
paternity and inserting Demski as her new father, I would reverse the trial court’s orders finding
MP a child born out of wedlock and affiliating Demski.

                    II. THE CUSTODY AND PARENTING TIME ORDER

        The trial court issued its bench ruling under the RPA on July 26, 2013. In that ruling, the
court ordered that Demski meet with Zollar for a “continuing concluding evaluation as it would
relate to the welfare of [MP].” The court continued: “And before any further orders from the
                                               -11-
Court will issue regarding contact of any form, Ms. Zollar needs to complete that and report to
the Court. I think that is related to both custody and parenting time.”

         On August 29, 2013, the trial court entered an order memorializing its bench ruling. That
order stated in relevant part: “Child custody and parenting time issues are reserved until further
Order from this Court[.]” On February 4, 2014, without holding an evidentiary hearing or any
record proceedings substantively addressing MP’s custody, the trial court entered an order
awarding Cassidie and Demski joint legal custody of MP, with Cassidie retaining physical
custody. The order stated that Demski would have parenting time “under the supervision of the
Friend of the Court with a goal of achieving reasonable rights of parenting time.” Two weeks
later, the Petlicks moved for reconsideration of the custody and parenting time order, arguing
that the trial court should not have entered it without holding a hearing under the CCA. The trial
court responded on May 28, 2014, by denying the motion, and entering a seven-page written
order reviewing the court’s findings under the best-interest factors of the RPA. For the first time,
the court detailed its findings regarding MP’s established custodial environment and the best-
interest factors stated in the CCA.

        The majority holds that the Petlicks failed to preserve their objection to the procedure
utilized by the trial court, specifically, the trial court’s failure to hold a custody hearing. The
majority has either misapprehended the chronology of events or has disregarded basic
preservation principles.

        No record evidence supports that the Petlicks could or should have anticipated that the
trial court would issue a custody and parenting time order without holding a separate evidentiary
hearing. Accordingly, the Petlicks could not have raised an objection to the trial court’s
procedure until the trial court sua sponte entered its February 4, 2014 order.

        The Petlicks objected to the trial court’s custody order in a timely fashion, 14 days after
that order entered. They had no basis for objecting earlier, as they had no awareness that the trial
court planned to enter a final custody order without holding a hearing as required under the
CCA. They challenged the trial court’s custody and parenting time order with a motion for
reconsideration because reconsideration was the only vehicle available to them. I know of no
precedent requiring litigants to read tea leaves or judicial hints to foresee a ruling not yet made.
In my view, the issue raised in the Petlicks’ motion for reconsideration is fully preserved. See
Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). As such, it
should be reviewed de novo. See Schlender v Schlender, 235 Mich App 230, 232; 596 NW2d
643 (1999) (“This Court reviews a claim of legal error [there the failure to conduct an
evidentiary hearing] de novo.”).

       The trial court committed two serious errors warranting reversal of its custody and
parenting time order. First, it rendered its order in the absence of an evidentiary hearing during
which the parties could introduce evidence relevant to the factors set forth in the CCA and cross-
examine witnesses. Second, in crafting its ruling, the trial court considered ex parte evidence
which it deliberately withheld from the parties. Both errors should fundamentally undermine a
reviewing court’s confidence in the trial court’s custody and parenting-time rulings.



                                               -12-
       The CCA “is 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, 593-594; 532 NW2d 205 (1995).
Here, the trial court correctly recognized that MP’s established custodial environment resided
with Cassidie.

       A court may not issue a new order changing a child’s established custodial environment
absent “clear and convincing evidence that it is in the best interest of the child.” MCL
722.27(1)(c).4 The court rules contemplate that a court will conduct an evidentiary hearing in
contested custody cases. MCR 3.210(C)(1) provides that “[w]hen the custody of a minor is
contested, a hearing on the matter must be held within 56 days (a) after the court orders, or (b)


4
 I use the term “custody” in this dissenting opinion to also encompass parenting time. A child’s
best interests govern parenting time determinations. Berger v Berger, 277 Mich App 700, 716;
747 NW2d 336 (2008). “Both the statutory best interest factors in the Child Custody Act, MCL
722.23, and the factors listed in the parenting time statute, MCL 722.27a(6), are relevant to
parenting time decisions.” Shade v Wright, 291 Mich App 17, 31; 805 NW2d 1 (2010).
Parenting time determinations are governed by their own list of best interest factors:

       (a) The existence of any special circumstances or needs of the child.

       (b) Whether the child is a nursing child less than 6 months of age, or less than 1
       year of age if the child receives substantial nutrition through nursing.

       (c) The reasonable likelihood of abuse or neglect of the child during parenting
       time.

       (d) The reasonable likelihood of abuse of a parent resulting from the exercise of
       parenting time.

       (e) The inconvenience to, and burdensome impact or effect on, the child of
       traveling for purposes of parenting time.

       (f) Whether a parent can reasonably be expected to exercise parenting time in
       accordance with the court order.

       (g) Whether a parent has frequently failed to exercise reasonable parenting time.

       (h) The threatened or actual detention of the child with the intent to retain or
       conceal the child from the other parent or from a third person who has legal
       custody. A custodial parent's temporary residence with the child in a domestic
       violence shelter shall not be construed as evidence of the custodial parent's intent
       to retain or conceal the child from the other parent.

       (i) Any other relevant factors. [MCL 722.27a.]


                                              -13-
after the filing of notice that a custody hearing is requested[.]” Ample case law supports that a
court cannot order a custodial change without first holding a hearing. See Mann v Mann, 190
Mich App 526, 531-532; 476 NW2d 439 (1991) (“Permitting a court to even temporarily change
custody solely on the basis of a Friend of the Court referee’s recommendation and without
holding a hearing would circumvent and frustrate one of the purposes of the Child Custody
Act—to minimize the prospect of unwarranted and disruptive changes of custody.”), and Pluta v
Pluta, 165 Mich App 55, 60; 418 NW2d 400 (1987) (“We do not believe that the trial court
should be allowed to circumvent and frustrate the purpose of the law by issuing an ex parte order
changing custody without any notice to the custodial parent or a hearing on the issue whether
clear and convincing evidence was presented that a change of custody was in the child’s best
interest.”).

        The majority dispenses with the need for a hearing by holding that the bench trial under
the RPA sufficed. The majority observes, “The trial featured seven witnesses providing several
hundred pages worth of testimony and dozens of exhibits presented by the parties.” While that
may be true, the trial did not “feature” a full exposition of evidence relevant to MP’s best
interests under the CCA because the trial court refused to consider it. Equally important, the trial
court denied the parties an opportunity to cross-examine Zollar regarding the custody and
parenting-time recommendations which ultimately guided the trial court’s decisions.

       During Zollar’s testimony at the RPA trial, the Petlicks’ counsel attempted to elicit her
opinion regarding parenting time in the event the court ordered it. Demski’s counsel objected,
arguing that that Zollar’s opinion was not relevant “to these proceedings”:

              Q. The - - the - - the Court may ultimately determine that - - that Mr.
       Demski does have some parenting time; could happen. If - - if - - if that occurs,
       would - - would you be willing to - - to act and to assist in any bridging - -

               Mr. Banyon: I’m - - I’m going to object to this question, Your Honor. It’s
       certainly not relevant to these proceedings.

              Mr. Armstrong: I’ll withdraw it. I’m just trying to help, Judge. I’ll
       withdraw the question. I’m done with the witness.

               The Court. All right, it’s withdraw[n].

Shortly thereafter, the Petlicks’ attorney tried to question Zollar regarding her experience in
“custodial dispute[s]” not involving abuse or neglect. The trial court sustained Demski’s
relevance objection:

               Q. And how many children have you assessed under the age of two and a
       half not related to sexual abuse?

                A. Well, probably out of the several hundred, probably 150 or so, given
       the fact that I frequently get referrals regarding other - - other issues that involve
       kids - - or children under the age of two and a half.

               Q. And how many of that hundred or so have you - -

                                               -14-
                   Mr. Armstrong: Your Honor, I believe she said 150.

                 Q. - - 150 or so have you assessed with respect to a custodial dispute not
          involving abuse or neglect?

                   Mr. Armstrong: Your Honor, I’ll object. This isn’t a custodial dispute.

                   Mr. Branyon: It involves custody, - -

                   Mr. Armstrong: Well, - -

                   Mr. Banyon: - - parenting time.

                   Mr. Armstrong: - - it may become one, but it’s not at this point, Your
          Honor.

                   The Court: I’m - - and your objection is?

                  Mr. Armstrong: My objection is it’s not relevant. I attempted to go into
          that particular area and he cut me off, and so apparently he doesn’t want to go into
          that area; and, therefore, it’s not relevant today. We could deal with that later
          apparently. If - - if the Court - -

                 The Court: All right. I’m going to - - I’m going to sustain the objection as
          to where we are now. . . .

        These excerpts illustrate that neither the parties nor the trial court intended that the RPA
hearing would encompass a best-interest hearing under the CCA. Zollar’s views were not aired
or subjected to scrutiny through cross-examination. Not a word was spoken by the parties or the
trial court regarding most of the best-interest factors under the CCA.5 Nor does the record


5
    The best interest factors set forth in MCL 722.23 are:

          (a) The love, affection, and other emotional ties existing between the parties
          involved and the child.

          (b) The capacity and disposition of the parties involved to give the child love,
          affection, and guidance and to continue the education and raising of the child in
          his or her religion or creed, if any.

          (c) The capacity and disposition of the parties involved to provide the child with
          food, clothing, medical care or other remedial care recognized and permitted
          under the laws of this state in place of medical care, and other material needs.

          (d) The length of time the child has lived in a stable, satisfactory environment,
          and the desirability of maintaining continuity.


                                                  -15-
substantiate that the parties agreed to forego a separate best-interest hearing in the interest of
conducting an omnibus proceeding. In my view, the trial court clearly and substantially erred by
relying on a limited record to decide the issues of custody and parenting time. See Crampton v
Crampton, 178 Mich App 362, 363; 443 NW2d 419 (1989) (“It was not sufficient for the court to
rely on the testimony and evidence from the referee’s hearing and to limit the taking of further
testimony as was done here.”).

        Moreover, a child-custody hearing demands the presentation of admissible evidence
subject to cross-examination. The trial court requested and entertained “a report with
recommendations relative to Custody and Parenting time,” authored by Zollar. According to the
trial court’s written opinion denying the Petlicks’ motion for reconsideration, the report was
“received by the court [on] November 20, 2013.” Zollar’s report is not in the record and
apparently was not provided to counsel. Yet according to the trial court’s opinion on
reconsideration, the substance of the report formed the basis for the trial court’s parenting time
order.6

       MRE 706 allowed the trial court to appoint Zollar as an expert witness. However,

       (e) The permanence, as a family unit, of the existing or proposed custodial home
       or homes.

       (f) The moral fitness of the parties involved.

       (g) The mental and physical health of the parties involved.

       (h) The home, school, and community record of the child.

       (i) The reasonable preference of the child, if the court considers the child to be of
       sufficient age to express preference.

       (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.

       (k) Domestic violence, regardless of whether the violence was directed against or
       witnessed by the child.

       (l ) Any other factor considered by the court to be relevant to a particular child
       custody dispute.
6
  That the trial court relied on Zollar’s report is supported by many comments within its opinion
on reconsideration: “The court reviewed the recommendation in light of all proofs preserved,”
“The Friend of the court was required to establish a bridging schedule for the exercise of the
initial parenting time to be held in a ‘therapeutic setting’ under the direction of counselor Robin
Zollar,” “The court upon consideration of her report and recommendation then fashioned the
order from which Defendants seek reconsideration,” Demski’s “parenting time shall consistent
with Robin Zollar’s recommendation be supervised by her in a therapeutic environment.”


                                               -16-
       [a] witness so appointed shall advise the parties of the witness’ findings, if any;
       the witness’ deposition may be taken by any party; and the witness may be called
       to testify by the court or any party. The witness shall be subject to cross-
       examination by each party, including a party calling the witness. [MRE 706(a).]

The court did not advise the parties that Zollar had made any findings until issuing its opinion on
reconsideration and never informed the parties of their substance and content. Zollar was not
subject to cross-examination before the trial court (apparently) incorporated Zollar’s opinions
into its custody and parenting-time decision. Ultimately, it is unknown whether the trial court
actually adopted Zollar’s recommendations as she expressed them. This possibility buttresses
my belief that the trial court’s procedure violated MRE 706.

        The Code of Judicial Conduct does not preclude all ex parte communications with
witnesses. However, it requires that a judge who elects to “obtain the advice of a disinterested
expert on the law applicable to a proceeding before the judge” provide “notice to the parties of
the person consulted and the substance of the advice, and affords the parties reasonable
opportunity to respond.” Code of Judicial Conduct, Canon 3(A)(4)(b). This exception to the
general rule barring ex parte communications comes closest to addressing what occurred in this
case. Here, the trial court consulted Zollar regarding expert opinion rather than “the law.” And
the trial court failed to afford advance notice of Zollar’s participation in this stage of the
proceedings, or the substance of her recommendations, to the parties. The report’s absence from
the record precludes this Court’s review of the trial court’s interpretation of Zollar’s
recommendations. I find the trial court’s procedure in this highly contested custody case deeply
troubling.

         The majority, however, shrugs off any claim that the Petlicks suffered a violation of their
rights, summarily stating that “[t]he Confrontation Clause does not apply to civil proceedings.” I
am not reassured. The right to confront and cross-examine witnesses “is implicit in our historical
concepts of due process and of fair trial[.]” Durant v Stahlin, 375 Mich 628, 649; 135 NW2d
392 (1965). In Hayes v Coleman, 338 Mich 371, 380-381; 61 NW2d 634 (1953), our Supreme
Court favorably quoted the following language from a Missouri case, Gurley v St Louis Transit
Co, 259 SW 895 (Mo App, 1924):

       The right of a litigant to cross-examine an adverse witness within proper bounds
       is an absolute right, and it is not within the discretion of the court to say whether
       or not the right will be accorded. The right of cross-examination is regarded of
       such consequence that it is made one of the chief grounds for the exclusion of
       hearsay evidence. If the right to cross-examine an adverse witness be denied or
       unduly limited or restrained, the testimony given by the witness would, in a very
       marked degree, partake of the character of hearsay testimony. It is always
       permissible upon the cross-examination of an adverse witness to draw from him
       any fact or circumstance that may tend to show his relations with, feelings toward,
       bias or prejudice for or against, either party, or that may disclose a motive to
       injure the one party or to befriend or favor the other. The party producing a
       witness may not shield him from such proper cross-examination for the reason
       that the facts thus elicited may not be competent upon the merits of the cause.


                                               -17-
         The majority concedes that it would have been “better practice to have received [Zollar’s]
report before the conclusion of proofs at trial, and to have included that report in the trial court
record[.]” Yes, it would. But the majority’s casual observation misses the point. “Cross-
examination is a critical element in the truth-determining process.” Brock v Roadway Express,
Inc, 481 US 252, 276; 107 S Ct 1740; 95 L Ed 2d 239 (1987). It enhances the quality and the
reliability of the decision-making process. The Petlicks had no opportunity to challenge and to
test Zollar’s opinions in a manner that would potentially influence the trial court’s decision-
making process. Whether Zollar once served as the Petlicks’ expert witness is of no moment,
given that she later provided crucial information to the trial court in a manner that can only be
described as secret. Her opinions and recommendations may have been incomplete or
misleading or based on improper criteria. The majority is satisfied with remaining in the dark.
In my view, MP’s best interests demand an airing.

        Zollar’s opinions and recommendations are not matters of national security. They guided
the Friend of the Court’s parenting time recommendations and the trial court’s orders, and the
majority has proposed no logical basis for excluding those opinions from effective and
adversarial dissection. I would hold that the trial court clearly erred by denying the Petlicks an
opportunity to review Zollar’s report and to cross-examine her before issuing its custody and
parenting-time decisions.

        In urging remand to the trial court, I concede that proceeding according to the well-
established rules governing custody and parenting-time determinations risks once again
destabilizing MP. But in my view, the trial court’s failure to hold an evidentiary hearing and its
consideration of ex parte evidence contaminated its best-interest findings relevant to custody and
parenting time. I have no confidence that MP’s best interests have been served by the court’s
order, because I have no means of understanding its evidentiary foundations. Because the trial
denied MP and Cassidie the most rudimentary form of due process, its decisions lack inherent
integrity and must not stand affirmed.




                                                             /s/ Elizabeth L. Gleicher




                                               -18-
