We granted leave to appeal in these cases to resolve several issues with respect to original child custody actions in circuit court. The questions presented are: 1) Does the circuit court have subject matter jurisdiction to hear and determine an original third-party child custody complaint under the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq.? 2) If the circuit court does have jurisdiction over such a claim, does a third party have standing to petition for custody under the act because the child resides with the third party, or resided with the third party in the past? 3) Does the circuit court have subject matter
We hold that the circuit courts have subject matter jurisdiction to hear and determine child custody actions pursuant to the Child Custody Act, without regard to the identity of the party who files the action. We further hold that, although the circuit courts do not lack subject matter jurisdiction to hear an original action for custody filed by a third party, a third party does not gain standing to petition for custody under the act because a child resides with the third party, or resided with the third party in the past. Finally, we hold that while the circuit courts have subject matter jurisdiction to hear and determine bona fide custody disputes, a circuit court exceeds its jurisdiction when it enters an order transferring custody from a parent to a third party where there is no dispute between the parties with regard to the custody of the child. Because we resolve these cases as a matter of statutory construction, we do not reach the constitutional question.
Thus, we affirm the decision of the Court of Appeals in Bowie v Arder, 190 Mich.App. 571; 476 N.W.2d 649 (1991), on grounds different from those relied on by the lower courts, and we reverse the decision of the Court of Appeals in Duong v Hong, 191 Mich.App. 462; 478 N.W.2d 922 (1991).
In each of these cases the parent or parents of a child allowed the child to reside with one or more
Carolyn Bowie, now deceased, and Milton Arder affirmed that they were the natural parents of Ashlee Bowie.
The parties dispute the events and circumstances of the period between Carolyn's death in December 1988 and the spring of 1990. Darresia alleges that Ashlee continued to live with her during this period and that Milton had minimal contact with Ashlee and herself. She further alleges that Milton demonstrated little love, care, or concern for the child, and that he picked up Ashlee, saying he would take her for a ride in his car, and then failed to return the child to her grandmother. Milton denies these allegations and alleges that he left Ashlee with Darresia for a short period of time. Milton further alleges that he asserted his parental rights in the spring of 1990
Darresia filed an action in circuit court on May 22, 1990, seeking custody of Ashlee pursuant to the Child Custody Act. Following a hearing, the circuit court dismissed the action for lack of subject matter jurisdiction, relying on Ruppel v Lesner, 421 Mich. 559; 364 N.W.2d 665 (1984). Darresia appealed as of right, and the Court of Appeals affirmed. We granted leave to appeal. 439 Mich. 922 (1992).
Long Han Hong and Phan Hue Ong are the natural parents of Kaye Star Hong, born December 30, 1981. Long and Phan emigrated from Vietnam in early 1981 and 1980, at the ages of twenty-one and nineteen, respectively. Phan gave birth to the couple's first child, a son named Oai, in the United States before her husband Long arrived here. The couple also have a younger daughter, Lily. Upon their arrival in the United States, Long and Phan had no home or jobs, nor could they speak, read, or understand English.
During an English class, Long and Phan met another couple who had emigrated from Vietnam. Mike Seng Yang
For reasons that are in dispute, Long and Phan allowed Kaye Star to live with Mike and Tuyet when she was approximately four months old. After caring for Kaye Star for approximately two months, Mike and Tuyet filed an action in circuit
The parties dispute whether the transfer of custody to Mike and Tuyet was intended to be permanent. Mike and Tuyet allege that Long and Phan wanted them to adopt Kaye Star, but discovered that a consent adoption would not be possible,
In the time period from July of 1982, when the
For reasons that are unclear, in March of 1983 Long and Phan moved to California. They did not take action to terminate the custody arrangement at this time. The parties disagree over promises made regarding contact between Long and Phan and Kaye Star after the move to California.
Six months later, Tuyet gave birth to a baby boy, whom Mike and Tuyet named Steven. By December of 1983, when Kaye Star was two years old, the parties' relationship was no longer amicable. Long and Phan wanted to terminate the custody arrangement and asked that Kaye Star be returned to them. The reason for Long and Phan's desire to terminate the arrangement is in dispute. Mike and Tuyet allege that Long and Phan were unhappy with them because they would not assist in sponsoring relatives of Long and Phan to allow them to immigrate to the United States. Long and Phan deny this allegation and allege that they wanted to terminate the arrangement because they feared Mike and Tuyet would favor their own son over Kaye Star. Mike and Tuyet did not consent to the termination of the custody arrangement.
Long and Phan contacted legal counsel and filed a petition for change of custody on September 14, 1984, alleging, inter alia, that they intended the custody arrangement to be temporary only. Kaye Star was almost four years old at this time. The case was referred to the Family Services Association
By the time the circuit court denied Long and Phan's petition for a change of custody, Mike and Tuyet had two more children, twin sons born in 1985. Also, at some point, Mike and Tuyet began calling Kaye Star "Jenny." In 1987, when Kaye Star was five years old, Long and Phan again unsuccessfully petitioned for a change of custody. Another evaluation was done, and apparently because of the recommendation against a change of custody, Long and Phan abandoned their petition.
Mike and Tuyet petitioned for child support in September of 1988, but their petition was denied by the circuit court. At some point in 1990, Long and Phan voluntarily suspended visitation because of Kaye Star's behavioral problems during visits with their family, which they attributed to Mike and Tuyet's interference. Mike and Tuyet deny this allegation. Mike and Tuyet petitioned the circuit court to formally suspend visitation, but this petition was denied. Long and Phan resumed visitation with Kaye Star in June 1990.
On September 18, 1990, Long and Phan filed in the circuit court a motion to vacate the court's original order of July 16, 1982, granting custody to Mike and Tuyet, and all subsequent orders, on the basis that the court lacked subject matter jurisdiction to enter the original order. The circuit court denied this motion. Long and Phan appealed as of right, and the circuit court's denial was
In Ruppel v Lesner, supra, this Court reversed a decision of the Court of Appeals affirming a circuit court's grant of temporary custody of a child to the child's maternal grandparents. At the time the grandparents petitioned for custody under the Child Custody Act, the child was living with her parents, who had not instituted divorce or separate maintenance proceedings. In reversing the lower court decisions, we held that
The parties in the instant cases focus their arguments on the emphasized language. The parents argue that this Court, by stating that the circuit court lacks "authority," meant that subject matter jurisdiction is lacking where divorce or separate maintenance proceedings have not been initiated and where there has been no finding of parental unfitness. The nonparents argue that the issue is not jurisdiction, but standing, and that where a child resides with a third party rather than the parents, or has resided with a third party in the past, that third party has standing to petition for custody of the child under the act.
The Court of Appeals has interpreted our holding in Ruppel in various ways. In Marshall v Beal, 158 Mich.App. 582, 589; 405 N.W.2d 101 (1986), the Court held that a circuit court may only consider third-party claims of child custody where the court
A further interpretation of our decision in Ruppel was advanced in Solomon v Lewis, 184 Mich.App. 819; 459 N.W.2d 505 (1990) (opinion of MARILYN J. KELLY, J.).
In Tallman v Milton, 192 Mich.App. 606; 482 N.W.2d 187 (1992), the Court agreed with the earlier panels that held that the issue in Ruppel was standing, rather than jurisdiction. However, it noted that "[t]o have standing one must have a legally protected interest that is in jeopardy of being adversely affected," id. at 612-613, and affirmed the circuit court's dismissal of the third-parties' custody petition. The Court reasoned that, as foster parents, the third-parties' rights were controlled by their agency/foster parent agreement with the Department of Social Services, and that the agreement did not give them the right to
In each of the instant cases, the panels of the Court of Appeals adopted one of these interpretations. In Bowie v Arder, supra at 573, the Court held:
In contrast, the Court in Duong v Hong, supra at 465-466, found Judge KELLY'S opinion in Solomon persuasive, and held that circuit courts have subject matter jurisdiction over custody disputes and that the issue of who can initiate an action for custody under the Child Custody Act is a question of standing. Further, the Duong Court held that a third party with whom a child resides has standing to petition the circuit court for custody of that child under the act. Id. at 466. The panel distinguished Duong from Bowie because in Bowie, at the time the nonparent petitioned for custody, the child resided with her father, while in Duong the child resided with the third parties when they filed their custody action. Id. at 467, n 2.
We must decide, then, whether this Court's decision
The parents argue that the Child Custody Act does not create subject matter jurisdiction over child custody disputes, and that a circuit court must look outside the act for subject matter jurisdiction to hear any child custody case. For example, pursuant to statute, a circuit court has jurisdiction to hear and decide a child custody dispute that is ancillary to divorce proceedings.
In Sovereign, this Court held that while circuit courts do not retain for all purposes the broad jurisdiction over children formerly exercised by chancery courts, they do have jurisdiction to hear
The parents argue, then, that while Sovereign recognized continuing equitable jurisdiction in circuit courts over children who are the subject of custody disputes, such jurisdiction only extends to disputes between a child's parents.
In contrast, the nonparents point out that the circuit court's subject matter jurisdiction is conferred by the constitution and by statute in broad and affirmative terms, rather than by the enumeration of powers. Const 1963, art 6, § 13 provides that "[t]he circuit court shall have original jurisdiction in all matters not prohibited by law...." Further, MCL 600.601; MSA 27A.601 provides:
Circuit courts have the power and jurisdiction
(3) prescribed by rule of the supreme court.
Finally, MCL 600.605; MSA 27A.605 provides:
Thus, because circuit courts are courts of general jurisdiction, where subject matter jurisdiction is presumed unless expressly prohibited or given exclusively to another court by constitution or statute,
We agree with the nonparents that the circuit court did not lack subject matter jurisdiction over the original third-party child custody action in Ruppel. A circuit court's equitable jurisdiction extends to the power and jurisdiction "possessed by courts and judges in chancery in England on March 1, 1847, as altered by the constitution and laws of this state and the rules of the supreme court." MCL 600.601(2); MSA 27A.601(2). The source of chancery court equitable jurisdiction over children is somewhat obscure, but is generally thought to derive from the king's executive power as parens patriae to protect his subjects, as delegated to chancery courts. 4 Pomeroy, Equity Jurisprudence (5th ed), § 1304, p 870. Infants are persons not sui juris, i.e., they do not have the capacity to manage their own affairs, therefore the king, as parens patriae, took over the care of their persons and property when they were without a
Thus, the subject matter of a custody dispute — the child — was clearly within the jurisdiction of the English chancery courts, and therefore also falls under the subject matter jurisdiction of the circuit court, unless prohibited or given exclusively to another court. We agree with the nonparents that circuit court jurisdiction over child custody disputes has not been denied by the constitution or by statute, nor has such jurisdiction been given to another court.
Although the parents do not dispute that the circuit court has the power to hear and resolve custody disputes, the parents attempt to define the scope of the circuit court's jurisdiction over original child custody actions in terms of who the plaintiff is and whether that plaintiff has a right to custody of a child. However,
Thus, the parents' argument with respect to the circuit court's jurisdiction over child custody actions confuses the question whether the court has jurisdiction over a class of cases, namely, child custody disputes, with the question whether a particular plaintiff has a cause of action. The parents' approach to the circuit court's subject
Therefore, while the circuit court in Ruppel erred in the exercise of its jurisdiction, it did not lack subject matter jurisdiction over the original child custody action in that case merely because it was initiated by a third party.
Having concluded that the circuit court had subject matter jurisdiction in Ruppel, we next consider whether this Court's decision in that case was based on the nonparent plaintiffs' lack of standing to petition for custody under the Child Custody Act. In Girard v Wagenmaker, 437 Mich. 231, 251; 470 N.W.2d 372 (1991), this Court interpreted Ruppel as a decision addressing standing, holding that a putative father who did not have standing to establish his paternity under the Paternity Act as it existed in 1985
We agree with the nonparents that our decision in Ruppel turned on the third-party plaintiffs' lack of standing to petition for custody of their granddaughter under the Child Custody Act.
In Ruppel we declined to interpret the Child Custody Act as a statutory means by which any interested person has standing to request the circuit court to make a determination of a child's best interests with respect to the custody of that child.
However, the nonparents in these cases argue that our holding in Ruppel turned on the fact that the child in that case was not living with her grandparents when they filed their custody action. They emphasize that this Court concluded that "where a child is living with its parents," who have not instituted divorce or separate maintenance proceedings, the circuit court could not award custody to a third party. Id. at 565. The nonparents claim that a different case is presented where a child either resides with the third-party
The nonparents urge this Court to adopt the reasoning of Judge KELLY in Solomon, supra, which emphasized that the child lived with the third-party petitioners at the time they sought custody and that the petitioners had possibly become the child's "psychological parents," id. at 824, and concluded that because the petitioners had a sufficient "personal stake" in the outcome of the litigation over the child's custody, they had standing to bring an action for custody under the Child Custody Act. Id. Judge KELLY noted that in order to have standing a party must have a "legally protected interest which is in jeopardy of being adversely affected." Id. at 822. See also Tallman, supra at 612. However, she appears to have assumed that because a child lives with a party other than the parent, that party thereby attains a legal right to the custody of the child, in competition with the child's parents or anyone else.
The question of standing is not merely whether a party has a "personal stake" in the outcome that will ensure "sincere and vigorous advocacy." See Solomon, supra at 824. Indeed, the third-party petitioners in Ruppel surely had a personal stake in the outcome of their custody action, and it was never claimed that they were not sincere and vigorous advocates. However,
We concluded in Ruppel that the Child Custody Act involves procedure only, setting forth "presumptions and standards by which competing claims to the right of custody are to be judged," but that the act "does not create substantive rights of entitlement to custody of a child." Id. at 565 (emphasis added).
We noted one exception in Ruppel to our conclusion that the act does not create substantive rights. MCL 722.27b; MSA 25.312(7b) provides for limited rights of visitation for grandparents. However, we cautioned that in a case where the third-party petitioners are close relatives of the child, "we must remember that, except for limited visitation rights, grandparents have no greater claim to custody than any other relative, or indeed any other persons." Ruppel, supra at 566. Since our decision in Ruppel, the Legislature has also given a guardian, and a limited guardian in certain circumstances, a right to petition under the act for legal custody of a child for whom the petitioner is a guardian. MCL 722.26b; MSA 25.312(6b).
We reiterate, however, that except with regard to grandparents and guardians, the Child Custody Act does not create substantive rights of entitlement to custody of a child, whether the child lives with the parents or with someone else. There is simply no provision of the act that can be read to give a third party, who is not a guardian or a limited guardian, a right to legal custody of a child on the basis of the fact that the child either resides with or has resided with that party. Neither Judge KELLY, nor the nonparents in these cases, have cited any other authority for the proposition that third parties who have physical custody of a child attain a right to the legal custody
Instead, in its most recent amendment of the Child Custody Act, the Legislature gave the guardian of a child, and a limited guardian in certain circumstances, standing to bring an action for custody of the child. MCL 722.26b; MSA 25.312(6b). It is true that guardians are a subgroup of the larger group known as "third parties." However, the Legislature has provided that guardians have "the powers and responsibilities of a
While neither the Child Custody Act nor any other authority of which we are aware gives a third party a right to legal custody of a child because the child resides with the third party, the Family Law Section of the State Bar of Michigan, as amicus curiae, urges this Court to create such a right. The Family Law Section suggests that the right should turn on an intricate balancing test based on both objective and subjective factors, including the length of time the child had resided
We are mindful of the extensive writings with regard to parental rights, the "best interests of the child" standard, "psychological parents," and the arguments, pro and con, for creating third-party rights to custody.
Further, to the extent that this Court's decision in In re Weldon, 397 Mich. 225; 244 N.W.2d 827 (1976), is inconsistent with our holding in these cases and our decision in Ruppel, it is overruled. Weldon was a factually and procedurally complex case where third parties, with whom a child resided under color of a legal adoption placement, brought an action in circuit court under the Child Custody Act for legal custody of the child against the child's natural mother, who had successfully challenged in federal court the constitutionality of probate court proceedings terminating her parental rights. With only five justices participating,
Justice COLEMAN concurred, concluding that because of the emphasis on the "best interests of the child" in the act, third parties with whom a child has resided under the color of a legal adoption placement could not be "elimin[ated] ... from consideration for placement by the circuit court." Id. at 263. However, once the termination proceedings, upon which the adoption proceedings depended, were declared invalid, the third-party petitioners in Weldon had the same status as any other third parties with whom a child resides. Thus, the Court in Weldon gave the third-party petitioners standing to bring a custody action under the act despite the fact that the third parties did not have a legal right to custody of the child.
Therefore, the decision in Weldon is in conflict with our holding in Ruppel that the Child Custody Act does not create substantive rights of entitlement to legal custody of a child. Further, the decision in Weldon is also called into question by the Legislature's subsequent amendment of the act explicitly giving guardians, and not other third parties, standing to petition for custody. Because the Weldon decision, giving standing under the act to a third party who does not have a legal right of entitlement to the custody of a child, is inconsistent with Ruppel and our decision here, it is overruled.
Therefore, we reaffirm our holding in Ruppel that a third party cannot create a custody dispute
However, when a circuit court entertains an original action for custody by a party who does not have standing, the court errs in the exercise of jurisdiction, rather than taking action for which it is without jurisdiction.
We must next consider an issue not addressed by this Court in Ruppel: Whether the circuit court
Although circuit courts are courts of general jurisdiction, with original jurisdiction to hear and determine all civil claims and remedies, circuit courts do not have jurisdiction in matters in which jurisdiction is given exclusively by constitutional provision or by statute to another court. MCL 600.605; MSA 27A.605. Circuit courts have all the power and jurisdiction possessed by English chancery courts in 1847, except "as altered by the constitution and laws of this state...." MCL 600.601(2); MSA 27A.601(2). Therefore, we must determine whether the circuit court's traditional equitable jurisdiction over children has been altered by the constitution or by statute to the extent it would preclude an award of custody by consent in an original action under the Child Custody Act.
In Sovereign, supra, while this Court held that a circuit court retained its general and historic chancery power to hear and determine a custody dispute between the parents of a child who had been denied a divorce, we did not believe that "the circuit courts of Michigan sitting in chancery retain for all purposes the broad jurisdiction over children formerly exercised by the chancery courts." Id. at 94. For example, while the English
The creation of a limited guardianship involves a voluntary suspension of parental rights upon the petition of the parent of a child. MCL 700.424a; MSA 27.5424(1). The parent must consent to the appointment of the limited guardian and must consent to a suspension of parental rights, and the court must approve a placement plan agreed to by both the parent and the limited guardian. Id. The placement plan includes such provisions as the reason the parent seeks the appointment of the limited guardian, the visitation and contact the parent will have with the child during the guardianship, and the financial support that will be provided by the parent. Id. Through the guardianship provisions of the Probate Code, the Legislature has enacted a detailed statutory scheme governing the voluntary suspension of parental rights and transfer of such rights to a limited guardian.
In contrast to the guardianship provisions, the Child Custody Act governs the resolution of disputes between one or more parties claiming a right to the custody of a child. The act provides that in all actions
Finally, in Ruppel we held that the act
By enacting the Child Custody Act, the Legislature standardized the criteria for resolving child custody disputes by requiring the circuit court to evaluate eleven factors in making its determination of the best interests of a child. Baker v Baker, 411 Mich. 567, 576; 309 N.W.2d 532 (1981). Before enactment of the Child Custody Act, a circuit court's exercise of its discretion in determining the best interests of a child was "virtually unfettered." Id. It is clear that the act was intended to provide a framework for the resolution of disputes with regard to the custody of a child.
However, a comparison of the guardianship provisions of the Probate Code and the Child Custody Act persuades us that the act was not intended to be used as a means to "legalize" voluntary transfers of physical custody of a child from a parent to a third party. The guardianship provisions set forth detailed procedures whereby a parent may voluntarily consent to the suspension of parental
In contrast, the Child Custody Act refers repeatedly to the bringing of an "action" for custody and to the resolution of "disputes" with regard to custody. Once the circuit court takes jurisdiction over a child and issues an order pursuant to the act, the court's jurisdiction continues until the child is eighteen years old, MCL 722.27(1)(c); MSA 25.312(7)(1)(c); however, the act does not provide for periodic court review, nor does it require annual reports to the circuit court by the child's custodian. Further, unlike the guardianship provisions, the act emphasizes the maintenance of an established custodial environment, even if the child resides with a third party rather than a parent. See MCL 722.27(1)(c); MSA 25.312(7)(1)(c).
In Bowie v Arder, the circuit court incorrectly concluded that it was without subject matter jurisdiction to hear and determine Darresia Bowie's petition for custody. Darresia's petition, and Milton Arder's answer to her petition, indicate that there was a bona fide dispute between the parties with regard to Ashlee's custody. However, the
In Duong v Hong, the original third-party action for custody, filed by Mike Yang and Tuyet Trieu in June of 1982, alleged that awarding the nonparents custody of Kaye Star Hong would be in the best interests of the child. Rather than disputing the claims in the petition for custody, Long Han Hong and Phan Hue Ong signed a stipulation to the entry of an order granting Mike and Tuyet custody of Kaye Star Hong and giving Long and Phan reasonable rights of visitation. The circuit court entered the order without holding a hearing and without the parties ever appearing before the court.
While the parties in Duong v Hong disagree with regard to their intentions in allowing Mike and Tuyet to have custody of Kaye Star, and with regard to how long the arrangement was intended to last, it is clear that at the time the order was entered in 1982 there was no dispute between the parties with regard to the custody of the child. The parties agree that their intention was to "legalize" the informal arrangement they had made allowing Kaye Star to reside with Mike and Tuyet. As we have held, the circuit court's equitable jurisdiction over children who are the subject of custody disputes does not allow the court to "rubber stamp" a voluntary transfer of legal custody from a parent to a third party pursuant to the dispute-resolution
Although Long and Phan did not move to vacate the original custody order and all subsequent orders until September 18, 1990, their delay does not prevent their recovery. The jurisdiction of a court arises by law, not by the consent of the parties. Straus v Barbee, 262 Mich. 113, 114; 247 NW 125 (1933). Parties cannot give a court jurisdiction by stipulation where it otherwise would have no jurisdiction. Shane v Hackney, 341 Mich. 91, 98; 67 N.W.2d 256 (1954). When a court lacks subject matter jurisdiction to hear and determine a claim, any action it takes, other than to dismiss the action, is void. Fox v Univ of Michigan Bd of Regents, 375 Mich. 238, 242; 134 N.W.2d 146 (1965). Further, a court must take notice of the limits of its authority, and should on its own motion recognize its lack of jurisdiction and dismiss the action at any stage in the proceedings. Id.
Thus, while an error in the exercise of a court's jurisdiction is not subject to collateral attack, want of jurisdiction renders a judgment void. Jackson City Bank & Trust, supra. The circuit court in Duong v Hong should have taken notice of its lack of jurisdiction and should have dismissed the original custody petition. Any action the court took other than dismissing the action was void for want of subject matter jurisdiction.
The nonparents argue, however, that even if jurisdiction was lacking when the circuit court entered the original custody order giving them legal custody of Kaye Star, the court did not lack jurisdiction in 1985 when it entered an order continuing custody of the child with the nonparents.
We cannot agree with the nonparents' reasoning. In order for Long and Phan to attempt to regain custody of their child, a petition for a change of custody pursuant to the act was necessitated by the circuit court's original order awarding legal custody to Mike and Tuyet. We cannot hold that the original custody order is null and void, but uphold the subsequent custody order that was dependent upon it, without gross speculation with regard to what action the parties would have taken had the circuit court properly dismissed the original action for want of jurisdiction.
Had the parties merely continued the informal arrangement, Long and Phan may have indeed filed a subsequent action for custody in the circuit court, over which the circuit court would have had jurisdiction if there was a bona fide dispute between the parties with regard to the child's custody at that time. However, had Long and Phan instead sought the appointment of Mike and Tuyet as limited guardians for Kaye Star, a petition for custody or for a change of custody would not have been necessary. We cannot say what would have happened had the circuit court not exceeded its jurisdiction, and we cannot base our decision on action taken by the circuit court that may not have been taken had the court not erred in the entry of its original order. Thus, we hold that the original order awarding custody of Kaye Star to
Because all circuit court orders with respect to the custody of Kaye Star are without force and effect, Long and Phan were never effectively deprived of legal custody of their daughter. However, Mike and Tuyet now have physical custody of the child. Thus, it appears that the parents may attempt to secure relief through a new cause of action pursuant to the Child Custody Act. Long and Phan clearly have standing to petition for physical custody of their child, and the circuit court would have jurisdiction to decide the case because of the bona fide dispute between the parties with regard to the custody of Kaye Star.
We caution, however, that because of the unusual circumstances of this case, in any such new cause of action the circuit court must take into account the inequitable and unfortunate result of the court's jurisdictional error at the commencement of the original action for custody filed by the nonparents. Should Long and Phan choose to file a new action under the act, special care must be taken to rectify, if possible, the damage visited upon them by the circuit court's previous orders entered in error. Thus, in the interest of judicial economy, we urge that the factors to be considered under the act, especially with respect to the continuity of the child's living environment, MCL 722.23(d); MSA 25.312(3)(d), be tempered by the fact that the parents were deprived of an opportunity to have their interests properly adjudicated.
Thus, we affirm the decision of the Court of Appeals in Bowie v Arder, and reverse the decision of the Court of Appeals in Duong v Hong, and
CAVANAGH, C.J., and BOYLE, RILEY, GRIFFIN, and MALLETT, JJ., concurred with BRICKLEY, J.
LEVIN, J. (separate opinion).
I am not persuaded that the Legislature has deprived the circuit courts of subject matter jurisdiction of these controversies, or that any of the parties lack standing to maintain an action concerning custody.
* * *
Similarly, "[a] person interested in the welfare of a minor ... may petition for the appointment of a guardian of the minor." MCL 700.424; MSA 27.5424.
Texas law provides:
Under Oregon law a person who has "established emotional ties creating a child-parent relationship with a child" may either intervene in a pending custody action or may petition for an order providing for custody, placement of the child, or visitation. Or Rev Stat 109.119(1). A "child-parent relationship" is defined as
See also Victor, Statutory review of third-party rights regarding custody, visitation, and support, 25 Fam L Q 19 (1991) (stating that "[s]ince there are no inherent rights of third parties to request custody or visitation of another person's child, it is incumbent on state legislatures to create such a right by the drafting and passing of legislation affecting children and third parties").
See also Smith v Organization of Foster Families for Equality and Reform, 431 U.S. 816, 846-847; 97 S.Ct. 2094; 53 L Ed 2d 14 (1977):