## Facts

- In a divorce action involving custody of two minor children, the parties entered a consent order providing for binding arbitration of property issues.
- The same consent order directed that custody, parenting time, and child support would be decided after an evidentiary hearing by a friend-of-the-court referee, whose decision would be “binding” and “not reviewable by the trial court,” while preserving appellate rights.
- After the referee hearing, the referee recommended awarding sole legal and physical custody to the father.
- The mother filed timely written objections to the referee’s recommendation.
- The circuit court entered the recommended custody order and denied the mother’s request for a de novo evidentiary hearing, reasoning that the parties had stipulated to nonreviewability.
- The Court of Appeals vacated the custody order and remanded for a de novo hearing.
- The Michigan Supreme Court granted leave to appeal to address whether such a consent order could eliminate the circuit court’s review and best-interests responsibility.

## Issues

1. Whether parties may, by consent order, make a friend-of-the-court referee’s custody decision binding and unreviewable by the circuit court.
2. Whether the Child Custody Act requires the circuit court to independently determine the children’s best interests before entering a custody order, notwithstanding alternative dispute resolution arrangements and party stipulations.
3. Whether a parent who timely objects to a referee’s custody recommendation is entitled to de novo trial-court consideration consistent with the court’s statutory duty.

## Decision

- The Michigan Supreme Court affirmed the Court of Appeals.
- The Court held that the parties could not, by agreement, divest the circuit court of its obligation to independently determine custodial placement under the Child Custody Act.
- The consent order provision making the referee’s custody decision binding and unreviewable by the trial court was ineffective.
- The circuit court was required to conduct de novo consideration of custody and make its own best-interests determination before entering a custody order.

## Legal Principles

- Under the Michigan Child Custody Act, the circuit court has a non-delegable duty to independently determine what custodial placement serves the children’s best interests when entering an order affecting custody.
- The statutory best-interest factors govern whenever a court enters a custody order; party agreement cannot relieve the court of applying those factors and making an independent determination.
- Alternative dispute resolution may be used to help resolve custody disputes, but its outcome is not enforceable as a custody determination unless and until the court enters an order after independent best-interests review.
- A stipulation purporting to eliminate trial-court review of a custody recommendation is inconsistent with the court’s statutory role and cannot be enforced to deny de novo trial-court consideration following timely objections.

## Conclusion

The Michigan Supreme Court held that custody determinations cannot be made binding and insulated from circuit-court review by party agreement; the circuit court must independently apply the Child Custody Act’s best-interest framework before issuing an enforceable custody order, requiring de novo trial-court consideration when objections are properly raised.


Harvey v. Harvey, 470 Mich. 186, 680 N.W.2d 835 (2004)