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Court can award custody to third party, even where party does not have standing to file motion for custody

Holding that the appellants had standing to participate as parties in the custody dispute, the court reversed the trial court's order denying their request to participate and remanded for a best interests hearing in which they and the defendant-father were allowed to fully participate. The child (DB) was born in 2002. DB's mother was the plaintiff. Defendant and plaintiff never married. Plaintiff died in 2010 from cancer. Following her death, the trial court awarded full legal and physical custody of DB to his maternal grandmother (Richardson), who was allowed to participate in the custody proceeding as a third-party plaintiff. Defendant was given parenting time once each month, with Richardson to be present during the visits. Richardson died in 2/14. DB began living with appellants. Appellant-Robinette's father was married to Richardson for about two years before Richardson's death. "Appellants are engaged and have a child together." Appellant-Borstler petitioned another trial court for temporary guardianship over DB in 3/14. Later that month, defendant filed a motion for custody in the trial court. Borstler was granted temporary guardianship over DB, and appellants then filed a motion for custody in the trial court. The trial court denied their motion on the basis they lacked standing and granted sole custody to defendant. The court held that "Borstler had standing to participate as a party in the custody dispute under MCL 722.26b(1), because when she made the request she was DB's temporary guardian." Further, "Robinette had standing to participate as a party in the custody dispute under MCL 722.26c(1)(b)." The court also agreed with the appellants that "even if they did not have standing, the trial court could still award them custody of DB under MCL 722.27(1)(a)." Defendant "filed a motion for custody in the trial court, initiating a proper custody dispute. Pursuant to MCL 722.27(1)(a), the trial court then had the authority to award custody of the child to a third party, such as appellants, regardless of whether they had standing." The court noted that on remand, the trial court should "award custody based on DB's best interests." While defendant was entitled to a parental presumption pursuant to MCL 722.25, the trial court "must still make specific findings of fact with respect to each of the best interest factors." The court also urged the trial court to appoint a guardian ad litem to represent DB's best interests.


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