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Appellate Delay Disturbing in Custody/Parenting Time Matter

Posted on Wednesday, May 16, 2018

In Teruya v Burgan, Docket No. 325126, issued April 7, 2016, a Michigan mother and Californian father of three children, who were conceived by in vitro fertilization insemination, disputed rights regarding parenting time and the father filed a complaint for paternity in Wayne Circuit Court. The court found that the father established paternity and then issued an order that promised a future order of filiation and support. The father then filed a motion for specific parenting and communication time with the children, which the court granted and issued a second parenting time order. The defendant/mother appealed this order on November 16, 2014, contending that the circuit court had wrongly granted parenting time before it entered an order of filiation or before it made a determination of the best interests of the children.  However, less than a month later, the parties stipulated to an order regarding filiation, child custody, parenting time and child support. Due to the stipulated order, on April 7, 2016, the Court of Appeals issued its opinion that the case was moot.

 

The mother argued that, though her specific case may be moot, her questions were of public interest and capable of repetition while evading judicial review. While the Court stated that it will hear such cases of public interest, this case did not meet those requirements and there was no relief the Court of Appeals could provide.

 

However, the disturbing aspect of this case is that it took well over a year from briefing for the Court of Appeals to issue an opinion. The Appellant-Mother’s application for leave was granted on December 26, 2014, her brief filed on January 23, 2015, no Appellee’s brief was filed, the Court of Appeals received the trial record on March 23, 2015, and finally, the case was submitted to panel on April 05, 2016, with the opinion issued April 7, 2016. MCR 7.213(C) states that child custody cases are given priority on the session calendar. While this case was determined moot, and therefore not overwhelmingly concerning by itself, a parenting time case still concerns the custody of a child and should be given priority on the calendar as such. It is alarming that a case may be presented to the Court that alleges that an individual received parenting time without formal recognition as the child’s parent, or without having the child’s best interest factors addressed, and it may not reach the Court until a year later. Although it is possible that the case was not “flagged” by the attorney as a priority case, the Court of Appeals docket clearly indicates that the order appealed from relates to “parental time” and the Court of Appeals decided the Application on an emergency basis (granting leave ten days after the Application was filed).

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