SHEILA HARVEY V HARRY LOUIS HARVEY
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice
Justices
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 9, 2004
SHEILA HARVEY,
Plaintiff-Appellee,
v
No. 124234
HARRY LOUIS HARVEY,
Defendant-Appellant.
_______________________________
PER CURIAM
In this divorce proceeding, the parties agreed that
the friend of the court would determine the custody of
their children and that the circuit court could not review
the decision.
friend
of
the
Honoring this, the circuit court entered the
court’s
recommended
order
awarding
sole
custody of the children to defendant and denied plaintiff’s
motion for a hearing to review the matter.
The Court of Appeals vacated the circuit court’s order
and remanded the case for a hearing de novo.
that
opinion,
but
write
to
provide
We affirm
clarification.
Regardless of the type of alternative dispute resolution
that
parties
circuit
court
use,
to
the
Child
determine
Custody
Act1
independently
requires
what
the
custodial
placement is in the best interests of the children.2
We
write to clarify the responsibility of the trial court in
making that determination.
I.
A.
BACKGROUND
Trial Court Proceedings
Two daughters were born during the parties’ marriage,
one in 1994 and the other in 1996.
In February 2000,
plaintiff filed a complaint for divorce with the Family
Division of the Oakland Circuit Court.
A variety of issues
were disputed, including custody of the children.
Instead of proceeding directly to trial, the parties
opted for a form of alternative dispute resolution.
On May
1
MCL 722.21 et seq.
We recognize that parents sometimes reach agreements
regarding custody and visitation matters either informally
through direct negotiations or through mediation procedures
made available by dispute resolution organizations.
Our
decision does not restrict the ability of parties to
address disputes through alternative dispute resolution
processes.
We hold only that the statutory “best
interests” factors control whenever a court enters an order
affecting child custody. An initial agreement between the
parties
cannot
relieve
the
court
of
its
statutory
responsibility to ensure that its adjudication of custody
disputes is in a child’s best interests.
2
Likewise, parties must understand that a child custody
determination resulting from alternative dispute resolution
processes is not enforceable absent a court order.
2
15,
2001,
the
circuit
court
entered
a
consent
order,
approved by both parties’ counsel, for binding arbitration.
Its object was to resolve all property matters3 and provide
for
an
evidentiary
hearing
and
binding
decision
by
the
friend of the court referee regarding custody, parenting
time, and child support issues.
The order stated that the
referee’s decision could not be reviewed by the circuit
court:
7.
Issues of custody, parenting time and
child support shall be referred to the Oakland
County Friend of the Court for an Evidentiary
Hearing in front of a Referee.
8.
The decision of the Referee, after
hearing, shall be binding on the parties and
shall not be reviewable by the trial court. The
Appellate rights to the Court of Appeals are
again preserved.
Following an evidentiary hearing, the friend of the
court
submitted
findings
to
the
circuit
court
with
a
recommended order awarding legal and physical custody of
the children solely to defendant.
Plaintiff filed timely
written objections to the order.
The circuit court entered the recommended order, over
plaintiff’s
objection,
arrangement.
The
changing
court
the
denied
3
existing
her
motion
custodial
for
an
The parties subsequently signed a binding arbitration
agreement and arbitrated the marital property issues, which
are not on appeal.
3
evidentiary hearing de novo and refused to set aside the
order when defendant argued that the parties’ stipulation
restricted its authority to review the order.
B.
Appellate Court Proceedings
Plaintiff appealed as of right.
The Court of Appeals
vacated the custody order and remanded for a hearing de
novo in the circuit court.
In its opinion, the Court of Appeals acknowledged that
the Child Custody Act governs all child custody disputes
and gives the circuit court continuing jurisdiction over
custody proceedings.
MCL 722.26.
The Court discussed two
statutory schemes that operate concurrently with the Child
Custody Act to provide the parties with alternative methods
of dispute resolution:
the domestic relations arbitration
act and the Friend of the Court Act.
MCL 600.5070 et seq.
and 552.501 et seq.
The domestic relations arbitration act permits parties
to agree to binding arbitration of child custody disputes.
It
contains
mandatory
numerous
protections
prearbitration
procedural requirements.
for
them,
including
disclosures
and
detailed
MCL 600.5072.
The parties can
seek circuit court review of the arbitration award.
600.5080
specifically
addresses
custody:
4
awards
concerning
MCL
child
(1)
Subject to subsection (2), the circuit
court shall not vacate or modify an award
concerning child support, custody, or parenting
time unless the court finds that the award is
adverse to the best interests of the child who is
the subject of the award or under the provisions
of section 5081.
(2)
A review or modification of a child
support amount, child custody, or parenting time
shall be conducted and is subject to the
standards
and
procedures
provided
in
other
statutes, in other applicable law, and by court
rule that are applicable to child support
amounts, child custody, or parenting time.
(3) Other
standards
and
procedures
regarding review of arbitration awards described
in this section are governed by court rule.
A separate provision, MCL 600.5081, generally addresses the
manner in which the circuit court shall review a motion to
vacate or modify an arbitration award.
Alternatively,
parties
to
a
custody
dispute
can
present the issue to a friend of the court referee.
If
they elect this option, the circuit court may review the
referee’s recommendation in accordance with MCL 552.507(5).
That subsection provides that the circuit court “shall hold
a de novo hearing on any matter that has been the subject
of
a
referee
hearing
hearing”
within
if
either
twenty-one
party
days
requests
after
such
receiving
a
the
referee’s recommendation.
The
statute,
Court
the
of
Appeals
parties
were
concluded
entitled
5
that,
to
have
under
either
the
circuit
court review the custody determination.
it
held,
“an
agreement
for
a
For this reason,
binding
decision
in
a
domestic-relations matter with no right of review in the
court, as in this case, is without statutory support under
either
scheme.”
257
Mich
App
278,
289;
668
NW2d
187
(2003).
The Court then determined that the parties had not
complied with the detailed procedural requirements of the
domestic relations arbitration act.
As a consequence, it
held that the parties’ agreement was governed by the Friend
of the Court Act, MCL 552.507(5).
The trial court should
have addressed plaintiff’s objections by holding a hearing
de novo to review whether the custody recommendation was in
the best interests of the children.
The Court of Appeals
summed up as follows:
In the absence of any review by the trial
court, as discussed above, and in the absence of
a valid agreement for binding arbitration or an
otherwise
valid
waiver
of
procedural
requirements, plaintiff was improperly denied a
hearing regarding her objections to the friend of
the court’s findings and recommendation.
[257
Mich App 292.]
It vacated the custody order and remanded for a hearing de
novo in the circuit court.
6
Defendant now seeks leave to appeal, asking this Court
to reinstate the custody order awarding him sole legal and
physical custody of the children.
II.
Whether
STANDARD OF REVIEW
parties
to
a
divorce
can
by
stipulation
restrict the circuit court’s authority to decide a custody
issue
is
a
question
of
law
that
we
review
de
novo.
Cardinal Mooney High School v Michigan High School Athletic
Ass'n, 437 Mich 75, 80; 467 NW2d 21 (1991).
III.
The
Child
Custody
ANALYSIS
Act
is
a
comprehensive
scheme for resolving custody disputes.
Mich
320,
327;
Legislature
597
sought
NW2d
to
welfare of children.”
and
jurisdiction.
vests
Van v Zahorik, 460
(1999).
“promote
the
With
best
it,
the
interests
and
Fletcher v Fletcher, 447 Mich 871,
877; 526 NW2d 889 (1994).
disputes
15
statutory
the
The act applies to all custody
circuit
court
with
continuing
MCL 722.26.
The act makes clear that the best interests of the
child control the resolution of a custody dispute between
parents, as gauged by the factors set forth at MCL 722.23.
MCL 722.25(1).
It places an affirmative obligation on the
circuit court to “declare the child’s inherent rights and
establish the rights and duties as to the child’s custody,
7
support, and parenting time in accordance with this act”
whenever
the
court
“involving
dispute
722.24(1);
Van,
is
of
required
a
supra
minor
at
to
adjudicate
child’s
328.
an
action
custody.”
Taken
MCL
together,
these
statutory provisions impose on the trial court the duty to
ensure that the resolution of any custody dispute is in the
best interests of the child.
Thus,
we
affirm
the
Court
of
Appeals
decision
to
remand this case to the circuit court for a hearing de
novo,
but
Appeals.
not
for
the
reason
stated
by
the
Court
of
It is irrelevant that the parties did not have a
“valid agreement for binding arbitration or an otherwise
valid waiver of procedural requirements . . . .”
App 292.
to
257 Mich
The Child Custody Act required the circuit court
determine
the
best
interests
of
the
children
before
entering an order resolving the custody dispute.
Our
holding
should
not
be
interpreted,
where
the
parties have agreed to a custody arrangement, to require
the
court
to
intensive
600.5080(1).
conduct
a
hearing
fact-finding.
or
See
otherwise
MCL
engage
552.513(2)
in
and
Our requirement under such circumstances is
that the court satisfy itself concerning the best interests
of
the
children.
When
the
indicates that it has done so.
8
court
signs
the
order,
it
A judge signs an order only
after
profound
deliberation
and
in
the
judge’s traditional broad discretion.
exercise
of
the
See Greene v Greene,
357 Mich 196, 202; 98 NW2d 519 (1959).
However,
agreements
the
does
deference
not
diminish
due
parties’
the
court’s
negotiated
obligation
to
examine the best interest factors and make the child’s best
interests paramount.
MCL 722.25(1).
Nothing in the Child
Custody Act gives parents or any other party the power to
exclude the legislatively mandated “best interests” factors
from
the
court’s
deliberations
once
a
custody
dispute
reaches the court.
Furthermore, neither the Friend of the Court Act nor
the domestic relations arbitration act relieves the circuit
court of its duty to review a custody arrangement once the
issue of a child’s custody reaches the bench.
The Friend
of the Court Act states that the circuit court “shall” hold
a
hearing
de
recommendation
recommendation
novo
if
in
to
review
either
writing
a
friend
party
within
of
the
court
objects
to
that
twenty-one
days.
MCL
552.507(5).
Likewise, MCL 600.5080 authorizes a circuit court to
modify or vacate an arbitration award that is not in the
best interests of the child.
to
review
the
arbitration
It requires the circuit court
award
9
in
accordance
with
the
requirements
Child
of
Custody
other
Act.
relevant
The
statutes,
court
retains
including
the
authority
over
custody until the child reaches the age of majority.
MCL
722.27(1)(c).
Thus, even when parties initially elect to submit a
custody dispute to an arbitrator or to the friend of the
court,
they
cannot
waive
the
authority
Custody Act confers on the circuit court.
Appeals
has
previously
explained,
that
the
Child
As the Court of
parties
“cannot
by
agreement usurp the court’s authority to determine suitable
provisions for the child’s best interests.”
Lombardo v
Lombardo, 202 Mich App 151, 160; 507 NW2d 788 (1993).
See
also Napora v Napora, 159 Mich App 241, 246; 406 NW2d 197
(1986).
the
Permitting the parties, by stipulation, to limit
trial
court’s
authority
to
review
custody
determinations would nullify the protections of the Child
Custody
Act
and
relieve
the
circuit
court
of
its
statutorily imposed responsibilities.
IV.
CONCLUSION
We agree with the Court of Appeals that parties cannot
stipulate to circumvent the authority of the circuit court
in determining the custody of children.
In making its
determination, the court must consider the best interests
10
of
the
children.
Child
custody
determinations
or
agreements are not binding until entered by court order.
The Court of Appeals judgment in favor of plaintiff,
remanding this case to the Family Division of the Oakland
Circuit Court for a hearing de novo is affirmed, but for a
reason
different
from
that
stated
by
that
Court.
7.302(G)(1).
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
11
MCR
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