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Demski v. Petlick

Court of Appeals of Michigan

March 5, 2015

JOSEPH RICHARD DEMSKI, Plaintiff-Appellee,

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Berrien Circuit Court. LC No. 12-003323-DP.



Before: BOONSTRA, P.J., and DONOFRIO and GLEICHER, JJ. GLEICHER, J. (dissenting).


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[309 Mich.App. 411] Mark T. Boonstra, P.J.

Defendants Cassidie Petlick and Jeffrey Petlick appeal by right the February 4, 2014 order of the trial court awarding joint legal custody of a minor child to Cassidie and to plaintiff Joseph Demski, awarding sole physical custody to Cassidie, and granting parenting time to plaintiff; defendants additionally appeal the August 29, 2013 order of filiation determining plaintiff's paternity of the child. We affirm.


Jeffrey began a romantic relationship with Cassidie in 2006; that relationship ended in March 2010. Shortly thereafter, in April 2010, Cassidie began a romantic relationship with plaintiff. That relationship lasted approximately 4 1/2 months, during which time plaintiff and Cassidie engaged in sexual relations. Jeffrey and Cassidie did not have sexual relations during the period of Cassidie's relationship with plaintiff.

[309 Mich.App. 412] In May 2010, Cassidie became pregnant. Plaintiff learned of the pregnancy in June 2010. Plaintiff testified that approximately three or four weeks later, he talked with Cassidie about getting married. In July 2010, while Cassidie was still in a relationship with plaintiff, Jeffrey learned that Cassidie was pregnant. Jeffrey acknowledged at trial that he always knew that the child was not his biological child and that plaintiff was the child's biological father.

In early August 2010, Cassidie's relationship with plaintiff ended, after which Cassidie and Jeffrey resumed their previous relationship. Plaintiff testified that he offered Cassidie financial and emotional assistance at that time, but that she rejected his help. Cassidie told plaintiff that he had no idea what it took to raise a child and that there was " no way" she was " going to hand her kid over to somebody like [plaintiff]." Plaintiff testified that he felt that Cassidie was pressuring him to back away from the situation.

In September or October 2010, Cassidie went to plaintiff's house to show him ultrasound photographs of the unborn child. Jeffrey (who was not present) testified that plaintiff acted as though he did not care to see the photographs and " grope[d]" Cassidie. Cassidie testified that during

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the first few minutes at plaintiff's house, she discovered that he was " highly under the influence," and that plaintiff tried to put his hands on her. Plaintiff denied touching or attempting to touch Cassidie when she stopped by his house to show him the photographs.

Jeffrey testified that, in late 2010, plaintiff told him that he wanted to " sign off" in regard to raising the child. Plaintiff and Cassidie sent a series of text messages to each other discussing the possibility of plaintiff signing away his rights in exchange for not [309 Mich.App. 413] being required to pay child support. Plaintiff acknowledged that, in November 2010, there was a brief period of time when he did not want to be involved with the child. Plaintiff testified that a few weeks later, he changed his mind. Plaintiff testified that he did not seriously consider walking out of the child's life, but that Cassidie's initial reluctance to receive his help discouraged him because he did not want the child to be raised in an environment with conflict. Jeffrey testified that, by the end of November 2010, he and Cassidie had decided that plaintiff was not going to be involved with the child.

Plaintiff obtained legal counsel who sent Cassidie a letter on January 13, 2011, indicating that plaintiff had retained counsel " in order to assist and facilitate his involvement with prenatal doctor's appointments as well as the birth of your daughter" and to assist in establishing paternity " as well as an eventual custody/parenting time arrangement." The letter also referred to plaintiff's desire to be present at the birth of the child. Cassidie did not contact plaintiff after she received the letter. Cassidie testified that she did not take the letter seriously, because five weeks earlier, plaintiff had told her that he wanted to sign away his rights.

In late January 2011, at approximately 2:30 p.m. or 3:00 p.m., Cassidie's water broke. At approximately 5:30 p.m. or 6:00 p.m. the same day, Jeffrey and Cassidie were married. At trial, Jeffrey testified that he and Cassidie had intended to get married on a date in February 2011, but altered this plan when it became apparent that the child would be born before that date. Jeffrey testified that they wanted to be married before the child was born so that the child would be born as a legitimate child into a family with a married mother [309 Mich.App. 414] and father. Cassidie testified that it was important not to have the child out of wedlock because she wanted to ensure that the child had a family. At approximately 7:00 p.m. on the date that Jeffrey and Cassidie were married, and while they were waiting for the child to be born, plaintiff arrived at the hospital and waited in the waiting room for approximately two or three hours before leaving.

The child, MP, was born the next day. On the day after the birth, Cassidie invited plaintiff to the hospital. Jeffrey testified that at that point he and Cassidie had decided that plaintiff could be involved in MP's life. Plaintiff visited MP at that time and held her for four hours. Cassidie testified that while plaintiff was at the hospital, she told him to " '[g]ive us a few days, let us get settled and we'll get ahold of you.'" According to plaintiff, Cassidie told him when he left the hospital that she would stay in contact with him. Plaintiff asked Cassidie to inform him of how MP's first doctor visit went, but Cassidie did not contact him about the visit.

Within a day or two after MP was born, according to plaintiff, Cassidie and Jeffrey told him via text messages to " 'back off or further action would be taken.'" According to Cassidie, she told plaintiff that " 'you're driving us crazy. Give us a few days[.]'" Other than by text messages, Jeffrey and

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Cassidie did not hear from plaintiff between MP's birth and April or May 2011. Jeffrey and Cassidie testified that after they did not hear from plaintiff, they considered the " door closed" on plaintiff's involvement in MP's life. Plaintiff testified that he was told by Jeffrey and Cassidie that he needed to " back off" or that they would pursue a restraining order or a personal protection order (PPO) against him. Plaintiff said that when he told his [309 Mich.App. 415] attorney of Jeffrey's and Cassidie's threats, his attorney advised him to stay away from them. Jeffrey testified to looking into obtaining a PPO, although it does not appear that one was ever issued.

Later in February 2011, Jeffrey and Cassidie went shopping with MP at Sam's Club. While at the store, MP suffered apnea and stopped breathing. Jeffrey and Cassidie took MP to a series of hospitals for treatment. Jeffrey testified that, as a result of that experience, he solidified his bond with MP.

On June 19, 2011, Jeffrey sent a Facebook message to plaintiff telling him: " Just do all of us a favor and go on with your life!!!!! We chose the best situation for [MP]!!!! And for you to say I am desperate???? You can go f__ yourself!!! Every one Has [sic] made mistakes, and the biggest one Cassidie ever made is with your dumba--!!!!!"

On July 4, 2011, Cassidie and MP went to a festival in Eau Claire, Michigan. Cassidie testified that when she first arrived, plaintiff swerved at her vehicle while he was driving an ATV. Jeffrey (who again was not present) testified that, subsequently, plaintiff came up to Cassidie while she was pushing MP in a stroller and tried to take pictures of MP with his cellular telephone. According to Jeffrey, Cassidie " smacked" plaintiff's hand away. Cassidie testified that plaintiff walked up to her in an aggressive manner and tried to take pictures of MP. Cassidie said that plaintiff appeared to be " under the influence," and testified that she asked plaintiff several times to stop taking pictures. Plaintiff acknowledged that he tried to take a photograph of MP with his cellular telephone but denied acting in a threatening or aggressive manner toward Cassidie or MP.

[309 Mich.App. 416] After the incident at the festival, Jeffrey called plaintiff on July 4, 2011, and told him to stay away from Cassidie and MP because Cassidie was afraid of plaintiff. Also, Jeffrey told plaintiff that if he went near Cassidie, he would obtain a PPO against plaintiff. On August 2, 2011, Jeffrey sent a text message to plaintiff telling him to " [l]eave us alone!!!!!" Jeffrey told plaintiff, " [h]ave you not got the clue that we don't like you and we ALL don't want anything to do with you!!!!" Jeffrey also told plaintiff, " [s]he's not your daughter!!!! Get it through your dumba-- brain!!!!!! She will never see you or come in contact with you!!!! Get over it!!!!!" On October 30, 2011, Jeffrey sent another text message to plaintiff telling him that " [y]ou will never see my daughter!!!!! Leave us alone."

On July 5, 2012, plaintiff filed his complaint in this action. Plaintiff's initial complaint, entitled " Complaint to Determine Parentage, Custody, Child Support, and Parenting Time" [1] sought a declaration that he was MP's father (although it did not cite the statutory basis for such a determination, i.e., the Paternity Act, MCL 722.711 et seq, or the Revocation of Paternity Act (RPA), MCL 722.1431 et seq ), joint physical and joint legal custody of MP, and a child support determination. Plaintiff alleged that he believed that he was MP's father, that Cassidie was denying

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his efforts to be involved in MP's life, and that he could provide MP with a stable living environment. Cassidie answered, denying that plaintiff was MP's father, that she had impeded plaintiff's efforts to be involved with MP, and that plaintiff could provide MP with a stable living environment. On September 19, 2012, plaintiff amended his complaint to add Jeffrey as a defendant, alleging that Jeffrey was the " presumed [309 Mich.App. 417] father" of MP. Plaintiff also added to his requests for relief by asking the trial court, in addition to determining paternity, to enter an order of filiation[2] naming him MP's legal father.

On December 7, 2012, the parties agreed to cooperate with genetic testing. The results of the paternity test showed that there was a greater than 99.999% chance that plaintiff was MP's father. The paternity test results were later admitted at trial. Plaintiff testified that at the beginning of January 2013, he saw Jeffrey at a gas station and tried to talk to him. Jeffrey told plaintiff to " 'stay the f__ away'" and that he was a " 'f__-- piece of s__ .'"

The trial court commenced a bench trial on May 24, 2013. The parties testified to the events described herein, and further presented testimony regarding the fitness of the parties and MP's best interests. Throughout the trial, and from its inception, the trial court and counsel made repeated reference to the issues at trial encompassing paternity, custody, and parenting time.

Plaintiff testified that he lived in Eau Claire, Michigan with his girlfriend, Lynna Nelson. Nelson and plaintiff had been in a relationship since October 2010, and Nelson had been living with plaintiff for approximately [309 Mich.App. 418] two years. Nelson acknowledged that there was a three or four week period during which she and plaintiff had ended their relationship, but said that they were back together and that their relationship was stronger because of the temporary breakup. Nelson acknowledged that at the time of their breakup, plaintiff said that he would kill himself; however, Nelson believed that plaintiff's threat was not serious. Cassidie testified that during the time she dated plaintiff, he had threatened suicide three or four times.

Plaintiff was a foreman with a company called Ferguson Michigan, in the field of underground construction. Plaintiff made approximately $54,000 in 2012. Plaintiff also testified that he had a room for MP in his home, and that he was willing and able to provide support for MP.

Plaintiff acknowledged that he had smoked marijuana in the past, but said that he had not smoked marijuana during the year before the trial. Plaintiff had a medical marijuana card valid from May 3, 2011, to June 11, 2013. Plaintiff also admitted that he had grown marijuana for approximately two years in the past. Plaintiff testified that he quit using marijuana because MP was the most important

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thing to him. Nelson testified that she and plaintiff had smoked marijuana together in the past, but that it had happened " years ago." Jeffrey testified, on the basis of plaintiff's deposition testimony, that plaintiff had consumed marijuana at night before driving his truck for work the next day, and that, during the two years before trial, plaintiff had used fake urine to pass drug tests at work. Cassidie testified that while she dated plaintiff, she saw him become intoxicated with marijuana and alcohol, and that plaintiff used marijuana every day while Cassidie lived with him. Cassidie [309 Mich.App. 419] testified that plaintiff would become mean and start fights when he was under the influence of marijuana.

Plaintiff said that his efforts to create a positive relationship with Jeffrey and Cassidie had been very negatively received. Plaintiff testified that if the trial court granted him parenting time with MP, he would encourage a relationship between MP and Jeffrey. Nelson testified that plaintiff definitely wanted to be a part of MP's life. Nelson stated that the only negativity that plaintiff demonstrated toward being involved with MP was the result of Cassidie's and Jeffrey's repeated rejections of his involvement.

Cassidie testified that she was concerned with plaintiff's long-term commitment to MP because he had gone back and forth regarding whether he wanted to sign away his rights or be involved with MP. Jeffrey said that he was concerned that MP would suffer emotional harm if plaintiff became a part of her life and then left. Cassidie said that she did not believe that plaintiff had a genuine desire to be involved in MP's life. Cassidie never heard plaintiff say that he wanted to get to know MP or to love MP, and she believed that plaintiff was only pursuing this case because he wanted to look good in front of his friends and family.

Jeffrey admitted that he had not allowed any relationship to form between plaintiff and MP. Jeffrey testified that he did not believe that plaintiff was fit to be a father and testified that this belief was in part based on his " passing" acquaintance with plaintiff " years ago in Eau Claire" although he did not elaborate further regarding his experience with plaintiff before the conception of MP. Jeffrey testified that plaintiff acknowledged at his deposition that he had been [309 Mich.App. 420] charged with assault in 1999. Plaintiff testified that he did not have any criminal convictions in the last three years.

Jeffrey and Cassidie lived with MP in St. Joseph, Michigan. Jeffrey was an independent distributor for Little Debbie Snack Cakes. Jeffrey earned approximately $37,000 to $40,000 per year. Jeffrey testified that he had a great bond with MP, provided care for her, and spent time with her every day. Cassidie testified that both she and Jeffrey worked, and that MP had three babysitters who would watch her on three separate days of the week. Jeffrey's mother testified that MP was very close to Cassidie and Jeffrey.

Regarding MP's best interests, Jeffrey testified that he believed that plaintiff could not offer MP a " second family of love" because MP was happy with Jeffrey and Cassidie. Jeffrey believed that MP would become an emotional " wreck" if she began a relationship with plaintiff because she did not " take kind" to new people and because she suffered " mini panic attack[s]" when she was scared. Cassidie testified that MP was very scared of strangers and that it took her quite awhile to warm up to people. Cassidie was concerned for MP's emotional well-being if she spent parenting time with plaintiff because she would not feel safe with him. Jeffrey's mother also testified that MP was timid and did not take well to new situations or people, and

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that she was afraid that MP would be " traumatize[d]" if she was placed into an environment other than Cassidie's and Jeffrey's house. Cassidie testified that she believed that it was in MP's best interests to wait on introducing her to plaintiff until she was older and could understand the situation.

[309 Mich.App. 421] Robin Zollar, a child psychotherapist, was called as an expert witness[3] by defendants. She testified that she first met with Cassidie, Jeffrey, and MP approximately three months before trial. Zollar met with Cassidie and Jeffrey individually, and with Cassidie, Jeffrey, and MP as a group. During the time Zollar observed MP with Cassidie and Jeffrey, MP called Cassidie " mommy" and Jeffrey " daddy," and interacted with Cassidie and Jeffrey equally well. Zollar testified that MP viewed Jeffrey as her father and that MP and Jeffrey seemed to be genuinely comfortable and attached to each other.

Zollar testified that if plaintiff or any other father figure was brought into MP's life, there was a danger that she would suffer frustration and anger because of her young age and inability to understand. Zollar also said that MP could become insecure, threatened, and confused. Zollar testified that the danger to MP was especially great if Cassidie and Jeffrey did not get along with plaintiff, because children the age of MP may believe that the problems of the adults are their fault. Zollar also testified that there was a danger that if a new parental figure was introduced into MP's life, she might become alienated from Jeffrey. However, Zollar also acknowledged that introducing a new parent into MP's life could also benefit her if the parent emotionally supported her for a sustained period of time.

On July 26, 2013, the trial court issued a ruling from the bench. The trial court noted that the issue before it was whether it should determine that MP was born out of wedlock under the RPA, MCL 722.1441, despite the fact that Jeffrey, having been married to Cassidie at [309 Mich.App. 422] the time of MP's birth, was MP's presumed father under MCL 722.1433(4).[4] The trial court recognized that MCL 722.1443(4) allowed it to refuse to determine that a child was born out of wedlock, if the determination would not be in the best interests of the child. After considering MP's best interests, the trial court found by clear and convincing evidence that plaintiff was MP's biological father and that she was born out of wedlock. On the basis of that finding, the trial court, on August 29, 2013, entered an order of filiation, determining paternity under MCL 722.1445. The trial court's order also required that plaintiff meet with Zollar for a " concluding evaluation." The trial court reserved the issues of child custody and parenting time until that evaluation could be completed.[5]

On February 4, 2014, the trial court entered an order awarding joint legal custody of MP to Cassidie and plaintiff, awarding sole physical custody to Cassidie,

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and granting parenting time to plaintiff. On February 18, 2014, Cassidie and Jeffrey moved the trial court for reconsideration on the ground that the trial court had entered a child custody and parenting-time order without holding a separate evidentiary hearing and without making specific findings of fact concerning child custody and parenting time. Cassidie and Jeffrey asked the trial court to set aside its February 4, 2014 order and schedule an evidentiary hearing regarding [309 Mich.App. 423] custody and parenting time. In an order dated May 28, 2014, the trial court denied the motion, stating that because it had conducted a trial on May 24, 2013, and June 11, 2013, in regard to plaintiff's complaint, which included claims for child custody and parenting time, it had fulfilled the requirement that an evidentiary hearing be held before the entry of an order regarding custody and parenting time. The trial court had further found that MP had an established custodial environment with Cassidie and had addressed the 12 best-interest factors for child custody under MCL 722.23. The trial court also had found that it was in MP's best interests that Cassidie and plaintiff share joint legal custody, that Cassidie have sole physical custody, and that plaintiff receive parenting time.

This appeal followed.


Defendants first argue that the trial court erred by entering an order determining paternity and an order of filiation in favor of plaintiff. Specifically, defendants argue that the trial court failed to properly assign the burden of persuasion and erred in its determination of MP's best interests. We disagree.


The trial court made its determination of paternity pursuant to the RPA, MCL 722.1431 et seq " Among other things, the Revocation of Paternity Act 'governs actions to determine that a presumed father is not a child's father . . . .'" Grimes v Van Hook-Williams, 302 Mich.App. 521, 527; 839 N.W.2d 237 (2013), quoting In re Daniels Estate, 301 Mich.App. 450, 458-459; 837 N.W.2d 1 (2013). " The RPA generally provides a court with [309 Mich.App. 424] authority to [d]etermine that a child was born out of wedlock and to [m]ake a determination of paternity and enter an order of filiation[.]" Sprenger v Bickle, 307 Mich.App. 411, 861 N.W.2d 52, (2014) (quotation marks and citations omitted; alterations in original). MCL 722.1441 governs actions to determine if a " presumed father" under the RPA is not a child's legal father because the child was born out of wedlock for the purpose of establishing paternity. Parks, 304 Mich.App. at 238. The biological father of a child born out of wedlock under MCL 722.1441 may then establish paternity under MCL 722.717(1).[6] A " presumed father" is a " man who is presumed to be the child's father by virtue of his marriage to the child's mother at the time of the child's conception or birth." MCL 722.1433(4). In this case, Jeffrey was married to Cassidie at the time MP was born, and was therefore a presumed father under MCL 722.1433(4).

MCL 722.1441(3) provides in relevant part:

If a child has a presumed father, a court may determine that the child is

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born out of wedlock for the purpose of establishing the child's paternity if an action is filed by an alleged father and any of the following applies:
* * *
(c) Both of the following apply:
( i ) The mother was not married at the time of conception.
[309 Mich.App. 425] ( ii ) The action is filed within 3 years after the child's birth. The requirement that an action be filed within 3 years after the child's birth does not apply to an action filed on or before 1 year after the effective date of this act.

In this case, the record showed that Cassidie was not married at the time she conceived MP, and that this action was filed both within three years of MP's birth and within one year of the effective date of the RPA. Accordingly, the elements of MCL 722.1441(3)(c) were met in this case. The parties do not dispute this on appeal. However, MCL 722.1441(3) indicates that the trial court " may" determine that the child is born out of wedlock when the elements are met; it does not state that such action is mandatory. See Walters v Nadell, 481 Mich. 377, 383; 751 N.W.2d 431 (2008) (stating that the use of the word " may" generally indicates discretionary action). This Court has previously held that, " even if the requirements of MCL 722.1441(1)(a) are met, the trial court may, of course, refuse to make that . . . determination if the court finds evidence that the order would not be in the best interests of the child." Glaubius v Glaubius, 306 Mich.App. 157, 173 n 4; 855 N.W.2d 221 (2014) (quotation marks and citation omitted).

MCL 722.1443(4) provides:

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. The court shall state its reasons for refusing to enter an order on the record. The court may consider the following factors:
(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.
[309 Mich.App. 426] (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.
(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.

Accordingly, a court may properly decline to rule that a child was born out of wedlock when the court finds under MCL 722.1443(4) that the ruling would not be in the child's best interests. See Glaubius, 306 Mich.App. at 173 n 4.


Defendants first argue that the trial court failed to assign the burden of persuasion to plaintiff. Further, they argue that plaintiff's burden, as articulated in Helton v Beaman, 304 Mich.App. 97; 850 N.W.2d 515 (2014), was to demonstrate by clear and convincing evidence that a change in custodial environment was in the child's best interests, and that the trial court failed to apply that legal standard. We review de novo issues related to the

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interpretation and application of the RPA, including determination of the applicable evidentiary standard. Parks v Parks, 304 Mich.App. at 237. Although the parties argued in the trial court the issue of what legal standard should apply, defendants failed to raise in that court the issue of the assignment of the burden of persuasion; that issue is therefore unpreserved. Polkton Charter Twp v Pellegrom, 265 Mich.App. 88, 95; 693 N.W.2d 170 (2005). We review unpreserved [309 Mich.App. 427] issues for plain error. Kern v Blethen-Coluni, 240 Mich.App. 333, 336; 612 N.W.2d 838 (2000). " 'To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.'" Id, quoting People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).

In presenting this argument, defendants blend and thus confuse two distinct issues: (1) whether the trial court properly assigned the burden of persuasion, and (2) whether the trial court applied the correct legal standard in determining whether that burden had been satisfied. Regarding the former, defendants identify no evidence or statement of the trial court supporting their assertion that the trial court failed to assign the burden of persuasion to plaintiff. Although the record reflects that the trial court did not specifically indicate which party bore the burden of persuasion, the plaintiff in a civil case bears the burden of persuasion throughout the course of a case. Reed v Breton, 475 Mich. 531, 548; 718 N.W.2d 770; 475 Mich. 531; 718 N.W.2d 770 (2006) (Kelly, J., dissenting); Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich.App. 165, 175-176; 530 N.W.2d 772 (1995). " A trial judge is presumed to know the law." Auto-Owners Ins Co v Keizer-Morris, Inc, 284 Mich.App. 610, 612; 773 N.W.2d 267 (2009). We therefore presume, given the dearth of evidence to the contrary, that the trial court assigned the burden of persuasion to plaintiff. Defendants' argument in that respect accordingly fails.

Defendants further argue that the trial court failed to apply the proper legal standard when determining whether plaintiff had satisfied his burden of persuasion, and that it should have applied the standard [309 Mich.App. 428] articulated in Helton. In Helton, the plaintiff brought an action under the RPA seeking to revoke the defendants' acknowledgment of parentage regarding a child the defendants had raised from birth. Helton, 304 Mich.App. at 99 (opinion by O'Connell, J.). The trial court in Helton denied the plaintiff's request to revoke the acknowledgment of parentage given its application of the best-interest factors set forth in MCL 722.1443(4). Helton, 304 Mich.App. at 102 (opinion by O'Connell, J.). Judge O'Connell, in his lead opinion in Helton, concluded as follows regarding the legal standard applicable in the matter before the Court:

Second, with regard to the applicable burden of persuasion, the Revocation of Paternity Act places Helton (as biological father) and Douglas (as acknowledged father) in equivalent litigation postures. See MCL 722.1437(3). Accordingly, it is appropriate to use the burden of persuasion applicable to disputes between parents, which results in a presumption in favor of maintaining the child's established custodial environment. See [ In re AP, 283 Mich.App. 574, 600-601; 770 N.W.2d 403 (2009).]
In this case, the child has an established custodial environment with defendants. To alter the established custodial environment, Helton would have to present clear and convincing evidence

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that a change in the custodial environment is in the child's best interests under MCL 722.23. [ Helton, 304 Mich.App. at 112-113 (opinion by O'Connell, J.).]

On appeal, defendants argue that this standard should apply to the trial court's determination of paternity in the instant case, requiring plaintiff, as the person challenging an established custodial environment, to present clear and convincing evidence that a change is in MP's best interests. Accordingly, they argue that the trial court erred when it did not require plaintiff to [309 Mich.App. 429] prove by clear and convincing evidence that a change in MP's custodial environment was in her best interests.

We first note that defendants acknowledge that the trial court, in making its custody determinations in this case, in fact applied the very standard for which defendants advocate. Defendants' argument instead appears to be that the trial court should have applied that standard earlier, in the context of its initial paternity determination. Defendants base their argument on Helton 's application of the legal standards controlling a change in custody under the Child Custody Act. See Helton, 304 Mich.App. at 111-112 (opinion by O'CONNELL, J.), citing In re AP, 283 Mich.App. at 600-602.

We find defendants' position difficult to grasp, given that the trial court applied precisely the standard that defendants favor. Even assuming, however, that defendants' position is premised on a distinction with a difference, we find it unpersuasive.

First, Helton is not binding on this Court. The lead opinion was only signed by a single judge. A second judge on the Helton panel disagreed with the lead opinion's application of child custody law and merely concurred with its affirmation of the trial court. Helton, 304 Mich.App. at 114-115 (K. F. KELLY, J., concurring). A third judge on the panel dissented. Helton, 304 Mich.App. at 129 (SAWYER, P.J., dissenting). See Burns v Olde Disc Corp, 212 Mich.App. 576, 582; 538 N.W.2d 686 (1995) (holding that " a plurality decision in which no majority of the participating justices agree concerning the reasoning is not binding authority under the doctrine of stare decisis" ).

Second, the lead opinion in Helton looked for guidance in the child custody standards because this Court had held in In re Moiles, 303 Mich.App. 59; 840 N.W.2d [309 Mich.App. 430] 790 (2013), rev'd in part 495 Mich. 944, 945, 843 N.W.2d 220 (2014), that a trial court is not required to make a best-interest determination under MCL 722.1443(4) when revoking an acknowledgement of parentage. Helton, 304 Mich.App. at 106-107 (opinion by O'CONNELL, J.). Because it was bound by Moiles,[7] and because it therefore was obliged to conclude that the trial court had mistakenly applied the best-interest factors in MCL 722.1443(4) when denying the plaintiff's request to revoke an acknowledgement of parentage, the lead opinion looked to the standards applicable to a change in custody under the Child Custody Act.

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In this case, by contrast, it is undisputed that the best-interest factors in MCL 722.1443(4) do apply. By its express terms, that provision applies to a trial court's " determin[ation] that a child is born out of wedlock . . . ." [8] Id. Consequently, unlike as was arguably the case in Helton in the context of a revocation of acknowledgement of parentage, there was no need to look beyond the statutory provision itself for the applicable legal standard. Helton is therefore inapplicable.

[309 Mich.App. 431] Finally, the trial court indicated that it had applied the " clear and convincing" evidentiary standard when it reached its determination regarding the best interests of the child under MCL 722.1443(4). We note that this provision does not expressly articulate a " clear and convincing" evidentiary standard. However, assuming that the " clear and convincing evidence" standard applies because it was applied in Helton under the Child Custody Act, that indeed was the standard that the trial court applied in this case. Consequently, defendants can claim no error in the trial court's application of that standard.[9]

For all these reasons, defendants' argument that the trial court's decision should be reversed, because it failed to properly assign the burden of persuasion and to apply the proper legal standard, lacks merit.


Defendants also argue that the trial court erred by failing to find that a determination that MP was born out of wedlock would not be in her best interests under the best-interest factors set forth in MCL 722.1443(4). We disagree. We review a trial court's factual findings in proceedings under the RPA for clear error. Parks, 304 Mich.App. at 237. " The trial court has committed [309 Mich.App. 432] clear error when this Court is definitely and firmly convinced that it made a mistake." Id. (citation and quotation marks omitted).

The trial court addressed the best interests of MP under MCL 722.1443(4) to determine whether it should hold that MP was born out of wedlock; this analysis was proper. Glaubius, 306 Mich.App. at 173 n 4. MCL 722.1443(4) broadly[10] identifies eight factors, quoted

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earlier in this opinion, that a trial court may consider in making its determination. Defendants argue the trial court erred by failing to address Factor (a) (whether the presumed father is estopped from denying parentage because of his conduct), Factor (b) (the length of time the presumed father was on notice that he might not be the child's father), and Factor (c) (the facts surrounding the presumed father's discovery that he might not be the child's father), and further erred in its application of the remaining factors.

Regarding Factors (a), (b), and (c), the record reflects that defendants' counsel stated at the bench trial as follows regarding the best-interest factors:

In this case, I believe there's more than an abundance of evidence to support the Court refusing to set aside or [309 Mich.App. 433] refusing to grant the relief request essentially, Judge. The Court really needs to simply dive into the several factors that are laid out: (a) through (h). And a few of those factors, as we often find, Your Honor, don't apply. The focus of my discussion will relate to factors (d), (e), (g), (g) [sic], and (h).

Defendants' counsel went on to address the best-interest factors before the trial court, but did not address Factors (a), (b), and (c). Having failed to address these factors before the trial court, we hold that defendants have waived appellate review of the trial court's failure to consider those factors. See Holmes v Holmes, 281 Mich.App. 575, 587-588; 760 N.W.2d 300 (2008) (" A party may not take a position in the trial court and subsequently seek redress in an appellate court that is based on a position contrary to that taken in the trial court. [And a] party cannot stipulate a matter and then argue on appeal that the resultant action was error." ) (citations and quotation marks omitted). However, even if we were to consider the issue, we would find defendants' position unpersuasive.

A trial court has discretion regarding which factors to consider. MCL 722.1443(4) states, " [t]he court may consider . . . ." (Emphasis added.) The word " may" indicates discretionary action, not mandatory. Walters, 481 Mich. at 383. Defendants concede on appeal that Factor (a) is inapplicable. Regarding Factor (b), defendants note that Jeffrey knew for six months before the birth that he was not MP's father; regarding Factor (c), defendants point out that Jeffrey discovered that he was not MP's father through a discussion with Cassidie before resuming their relationship six months before the birth. Defendants contend that Factors (b) and (c) these facts, favor Jeffrey.

Factors (b) and (c) have not been addressed in our caselaw. Defendants argue that the fact that Jeffrey [309 Mich.App. 434] was at all times aware that MP was not his child weighs in favor of them because of Jeffrey's willingness to raise a child that was not his biological offspring. Plaintiff argues that this fact instead weighs in favor of plaintiff because the presumed father was not " surprised" by discovering that MP was not his biological offspring after raising MP for a period of time. Both positions have some merit. On balance, under the facts of this case, in which it was clear that all parties were aware that plaintiff was the biological father of MP and that discussion regarding

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his involvement in MP's life began before her birth and continued almost immediately after her birth, we find that the factors do not clearly favor one party or another, and that the trial court did not clearly err by failing to sua sponte consider these factors.

Defendants further contend that the trial court erred in its application of the remaining factors set forth ...

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