Woodman v. Kera LLC

I concur in full with Justice HATHAWAY and with parts I, II, and 111(A) of Justice Young’s opinion. I write separately to touch on parental indemnity agreements in the context of liability waivers involving children. Justice YOUNG takes the position that a defendant can circumvent the unenforceability of a parental preinjury liability waiver simply by entering into a separate indemnity agreement with the parent. In footnote 74 of his opinion, he states:

I note that, even without a change in the common law rule, defendant has alternatives for reducing its liability. For example, defendant’s waiver in this case suggests a suitable, although perhaps less than optimal, alternative: parental indemnity. A parent can contract on the parent’s own behalf to indemnify the defendant for any losses arising from injuries his child suffers while participating in the activity offered by the defendant.

Justice YOUNG is the only one who has advanced this position and it has not been adopted by this Court. I find his proposition problematic for several reasons.

First, his discussion of the issue is unnecessary to resolve the case. Second, neither of the parties advanced this argument, and this Court did not have a proper opportunity to consider and pass on it. I would be *261hesitant to make such a sweeping holding without having briefing on the matter. Also, the Court has not given due consideration to how indemnity agreements by parents interact with parental preinjury liability waivers.

Finally, the validity of such indemnity agreements is questionable. They would require an injured child to seek recovery from his or her parent. Courts in a number of states have held that such indemnity agreements are unenforceable because they produce the same effect as parental preinjury liability waivers. That is, they enable a tortfeasor who is negligent to shift financial responsibility for its tortious conduct to the parent of the minor victim. 1

The validity of such indemnity agreements is not answered in this case and is left for another day.

I would affirm the Court of Appeals’ decision that defendant was not entitled to summary disposition on the basis of the release. I would do so, however, on different grounds. The actual language of the release at issue did not waive the minor child’s claims. Instead, the release only waived the claims of the “undersigned,” and the undersigned was the child’s father. Although I believe that whether a parental preinjury liability waiver is valid and enforceable is an issue of jurisprudential significance, I find it unnecessary to reach that issue in this case.1 Accordingly, I *262would vacate the portion of the judgment of the Court of Appeals that held that preinjury waivers effectuated by parents on behalf of their minor children are not presumptively enforceable, and I would remand the case to the trial court for further proceedings.

I agree that defendant was not entitled to summary disposition on the grounds that the actual language of the waiver at issue did not waive the minor’s claims. Accordingly, I would affirm the judgment of the Court of Appeals. However, I would vacate the analysis that concluded that a parent cannot waive a child’s negligence claim prospectively in order to participate in voluntary recreational activities. In that regard, the Court of Appeals answered a question that was not properly before it given the actual terms of the release. The lead opinion and those of Justice HATHAWAY and Chief Justice KELLY do the same. Therefore, I disagree with this conclusion of law. If this issue were properly before us — and it is not — I would clarify that Michigan’s common law does allow the enforcement of such a waiver. That is, if the release in this case had actually contained effective language indicating that the father was waiving his son’s negligence claims prospectively, I would conclude that Michigan common law permits the enforcement of that waiver to the same extent as if the father himself had signed a preinjury waiver of his own rights as a condition of participating in a sporting or recreational activity.1

*263I. THE RELEASE

As recognized in the lead opinion, Jeffrey Woodman signed a form so that his son could participate in a recreational activity. The pertinent part of the release, which only the father signed, provided:

THE UNDERSIGNED, by his/her signature herein affixed does acknowledge that any physical activities involve some element of personal risk and that, accordingly, in consideration for the undersigned waiving his/her claim against BOUNCE PARTY, and their agents, the undersigned will be allowed to participate in any of the physical activities.

Thus, the release stated plainly that the “undersigned” (who was the father), in consideration for waiving his claim against defendant, would be allowed to participate in any of defendant’s physical activities, which involved some element of personal risk. While the child was identified as a “participant” at the bottom of the release, the only waiver that actually occurred was by and for the “undersigned,” the father. Thus, the actual language of the release simply did not waive any claims or rights of the minor, whatever was purported to have been done and whatever issues the parties have determined to litigate.

*264Remarkably, the justices comprising the majority do not see this as a barrier to their opinions. Rather, they decide that if the document had been drafted to state that the father was waiving his son’s potential claims — which again it was not — it would have been unenforceable. This is a noteworthy pronouncement of law, but over the past 175 years or so, this Court has been in the habit of uttering such pronouncements only in response to actual and not hypothetical disputes. We have been in the habit of viewing an actual dispute as a condition for the exercise of our “judicial power.” Const 1963, art 6, § 1. To decide a hypothetical dispute is the equivalent of issuing an advisory opinion, which, with narrow constitutional exceptions, is beyond the scope of this judicial power.2

In effect, the justices in the majority assert the invalidity of a contract into which the parties never entered. This constitutes nothing less than reaching out to decide a non-controversy — indeed, in this case, a false controversy. The opinions of the justices in the majority, whatever their substantive merits, constitute little more than nonbinding dicta and more properly belong in a law review rather than a volume of the Michigan Reports.

The lead opinion suggests that plaintiff “abandoned” or “waived” the argument that the release did not actually waive the son’s claims because, although plaintiff preserved this issue in the trial court, he did not preserve it in the Court of Appeals. While I certainly agree that an appellate court will not ordinarily review an issue that has been abandoned or waived, such *265review is allowed when it is “necessary to a proper determination of the case . . ." Dation v Ford Motor Co, 314 Mich 152, 160-161; 22 NW2d 252 (1946); see also Paramount Pictures Corp v Miskinis, 418 Mich 708, 731; 344 NW2d 788 (1984); Prudential Ins Co of America v Cusick, 369 Mich 269, 290; 120 NW2d 1 (1963).3 This could not be more clearly the situation here. The individual decision of a litigant not to pursue an available argument, or to relinquish an available issue, cannot impose on this Court an obligation to operate upon a false premise, in this case that a contract says what it clearly does not say. 4 That is, neither an individual litigant nor even both litigants acting jointly can require this Court to turn a blind eye toward the actual words of a dispositive document. No matter what the parties’ determination to have a particular issue decided, they cannot impose on this Court the obligation to pretend that A does not say A; no litigant can obligate this Court to ignore what is true and accept what is false.

Thus, in deciding whether a parent can waive a child’s claims before the injury, the justices in the *266majority are compelled to rewrite what is a straightforward release. However, the proper rule is that the scope of a release is controlled by its language, and we construe such language as written. See Batshon v Mar-Que Gen Contractors, Inc, 463 Mich 646, 649-650; 624 NW2d 903 (2001); McDonald v Farm Bureau Ins Co, 480 Mich 191, 197-198; 747 NW2d 811 (2008). The justices in the majority construe the release not “as written,” but as rewritten.

For these reasons, I would affirm the judgment of the Court of Appeals that held that defendant was not entitled to summary disposition, but I would vacate the Court of Appeals’ analysis addressing a parent’s ability to waive a child’s negligence claims prospectively. I thus dissent from the decision to rewrite a contract in order to answer a question not raised by the actual contract.

II. THE COMMON LAW

A. NATURE OF THE COMMON LAW

The common law originated in the decisions of English judges, starting in the early Middle Ages, and developed over the ensuing centuries. Hall, ed, The Oxford Companion to American Law, (New York: Oxford University Press, 2002), p 125. Sir Edward Coke explained that the common law was the “custom of the realm.” Coke, The Complete Copyholder, p 70 (1641). He indicated that if a custom was “current throughout the commonwealth,” it was a part of the common law. Id. Sir William Blackstone similarly discussed “[general customs; which are the universal rule of the whole kingdom, and form the common law.” 1 Blackstone, Commentaries on the Laws of England, p 67.

The “common law and its institutions were systemically extended to America, at least insofar as appropri*267ate for frontier conditions.” Oxford Companion, p 127. This was true in particular in Michigan where each of its constitutions (starting in 1835) generally adopted the common law.5 Given that the common law develops through judicial decisions, it has been described as “judge-made law.” Placek v Sterling Hts, 405 Mich 638, 657; 275 NW2d 511 (1979). As this Court explained in Bugbee v Fowle, the common law “ ‘is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes.’ ” Bugbee v Fowle, 277 Mich 485, 492; 269 NW 570 (1936), quoting Kansas v Colorado, 206 US 46, 97; 27 S Ct 655; 51 L Ed 956 (1907).

The common law, however, is not static. By its nature, it adapts to changing circumstances. See Oliver Wendell Holmes, Jr., The Common Law (New York: Dover Publications, Inc., 1991), p 1 (noting that the common law is affected by “the felt necessities of the time, the prevalent moral and political theories, [and] intuitions of public policy” and that it “embodies the story of a nation’s development through many centuries”). And as this Court stated in Beech Grove Investment Co v Civil Rights Comm:

It is generally agreed that two of the most significant features of the common law are: (1) its capacity for growth and (2) its capacity to reflect the public polity of a given era.

*268“The common law does not consist of definite rules which are absolute, fixed, and immutable like the statute law, but it is a flexible body of principles which are designed to meet, and are susceptible of adaption to, among other things, new institutions, public policies, conditions, usages and practices, and changes in mores, trade, commerce, inventions, and increasing knowledge, as the progress of society may require. So, changing conditions may give rise to new rights under the law . . . .” [Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405, 429-430; 157 NW2d 213 (1968), quoting CJS, Common Law, § 2, pp 43-44.]

The common law is always a work in progress and typically develops incrementally, i.e., gradually evolving as individual disputes are decided and existing common-law rules are considered and sometimes adapted to current needs in light of changing times and circumstances. In re Arbitration Between Allstate Ins Co & Stolarz, 81 NY2d 219, 226; 597 NYS2d 904; 613 NE2d 936 (1993) (noting that the law evolves through the “incremental process of common-law adjudication as a response to the facts presented”);6 see also People v Aaron, 409 Mich 672, 727; 299 NW2d 304 (1980) (“Abrogation of the felony-murder rule is not a drastic move in light of the significant restrictions this Court has already imposed. Further, it is a logical extension of our decisions ....”).

*269b. common-law authority

The lead opinion acknowledges that this Court “unquestionably” has the authority to modify the common law.7 Ante at 231. This authority is traceable to Const 1963, art 3, § 7, which provides:

The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.

As stated in Myers v Genesee Co Auditor, 375 Mich 1, 7; 133 NW2d 190 (1965) (opinion by O’HARA, J.): “ ‘Amendment’ and ‘repeal’ refer to the legislative process. ‘Change’ must necessarily contemplate judicial change. The common law is not static, fixed and immutable as of some given date.” Thus, the ability to alter the common law is constitutionally vested in both the Legislature and the judiciary. There is no violation of separation-of-powers principles under Const 1963, art 3, § 2, when the judiciary alters the common law because that power is given to both branches to exercise through means and procedures that are proper to each.8 *270The common law is, thus, law subject to continuing judicial and legislative development.9

The lead opinion contends that this Court is less well positioned than the Legislature to decide whether the common law should be altered.10 Although there may well be instances in which this is true, and in which prudence would dictate that we defer to the Legislature, *271I do not know why this should invariably be true.11 The common law of parental waivers has been a matter of longstanding judicial interest in this state, the legal rights of children is an issue well known to this Court in a wide variety of contexts, the judiciaries of most other states have addressed the common law of parental waivers, and the immediate dispute involves only whether to clarify, or ‘fine-tune’ at the margins, a common-law rule of considerable vintage. Each of these factors implicates exactly the kind of decision-making that typifies the evolution of the common law. Our constitution gives the judiciary the authority to change the common law because the common law is “judge-made law.” Placek, 405 Mich at 657. And it is well recognized that rules that were “judge-invented” can be “judge-reinvented,” “judge-uninvented,” or, as I believe is required in this case, “judge-clarified.” See Montgomery v Stephan, 359 Mich 33, 49; 101 NW2d (1960). As *272was stated in Moning v Alfono, 400 Mich 425, 436; 254 NW2d 759 (1977): “The law of negligence was created by common-law judges and, therefore, it is unavoidably the Court’s responsibility to continue to develop or limit the development of that body of law absent legislative directive.”

I would further observe that in Henry v Dow Chern Co, 473 Mich 63, 83; 701 NW2d 684 (2004), which the lead opinion cites, this Court explained that it is “the principal steward of Michigan’s common law.”12 (Emphasis added.) And in Burns v Van Laan, 367 Mich 485, 494; 116 NW2d 873 (1962), we stated, “In that great field where the common law grows or withers the judiciary is the primary actor.” (Emphasis added.)13 *273Then, in Placek, 405 Mich at 657, 659, we reiterated that this Court may alter the common law through its decisions: “[W]hen dealing with judge-made law, this Court in the past has not disregarded its corrective *274responsibility in the proper case. . . . [The courts] are certainly in as good, if not better, a position to evaluate the need for change, and to fashion that change.” In People v Stevenson, 416 Mich 383, 390; 331 NW2d 143 (1982), we stated, “This Court has often recognized its authority, indeed its duty, to change the common law when change is required.” And in Adkins v Thomas Solvent Co, 440 Mich 293, 317; 487 NW2d 715 (1992), we asserted: “When appropriate, we have not hesitated to examine common-law doctrines in view of changes in society’s mores, institutions, and problems, and to alter those doctrines where necessary.”

For these reasons, I reject the Court of Appeals’ statement that “we can neither judicially assume nor construct exceptions to the common law extending or granting the authority to parents to bind their children to exculpatory agreements. Thus, the designation or imposition of any waiver exceptions is solely within the purview of the Legislature.” Woodman v Kera, LLC, 280 Mich App 125, 149; 760 NW2d 641 (2008) (opinion by TALBOT, J.). Far more accurately, as Judge BANDSTRA stated, the issue is for “either the Michigan Legislature or our Supreme Court ....” Id. at 157 (BANDSTRA, J., concurring) (emphasis added).

C. COMMON-LAW PRINCIPLES

The lead opinion correctly states that when deciding whether to clarify or change the common law, this Court should consider existing sources of public policy, such as statutes and other court decisions setting forth common-law doctrines.14 As a starting point, we inquire *275whether the Legislature has already spoken regarding the specific issue.15 If not, we then inquire whether the Legislature has preempted a particular area of the law.16 When we determine that the Legislature has not specifically spoken, and has not preempted the adoption or *276revision of a new common-law rule, we consider whether a clarification or change of the common law is warranted in light of a variety of factors discussed herein.

As noted, “we have not hesitated to examine common-law doctrines in view of changes in society’s mores, institutions, and problems, and to alter those doctrines where necessary.” Adkins, 440 Mich at 317. But as counseled in People v Kevorkian, 447 Mich 436, 482 n 60; 527 NW2d 714 (1994) (opinion by CAVANAGH, C.J., and BRICKLEY and GRIFFIN, JJ.), citing Judge Cardozo’s The Nature of the Judicial Process:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of. discretion that remains. [Quotation marks and citations omitted.[17]

It is also the case that “endeavoring to uncover the doctrinal underpinnings of common-law rules can be an effective — if not essential — way of determining whether a suggested [clarification or] change [to a common-law rule] is warranted.” Young, A judicial traditionalist confronts the common law, 8 Texas Rev L & Pol 299,309 (2004); see also Montgomery, 359 Mich at 49 (“The reasons for the old rule no longer obtaining, the rule *277falls with it.”);18 James v Alberts, 464 Mich 12, 17; 626 NW2d 158 (2001) (abolishing the volunteer doctrine because “the fellow-servant rule, which created the need for the volunteer doctrine, was no longer part of our law”). Thus, when the common-law rationale for a particular rule has dissipated, the rule itself may be subject to revision or change.

Courts also consider other relevant, though not directly applicable, statutes in determining whether to clarify or change the common law because

“legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved. The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law.” [Moning, 400 Mich at 453-454, quoting Moragne v States Marine Lines, Inc, 398 US 375, 390-391; 90 S Ct 1772; 26 L Ed 2d 339 (1970).]

Thus, we also look to (1) actual social customs and practices, and changes in such customs and practices, (2) the doctrinal underpinnings of a common-law rule and their continuing relevance, (3) related statutes and *278case-law, and (4) the extent to which existing rules may reasonably be supposed to have influenced or determined the conduct of the litigants. But in the final analysis, we ask ourselves, what common-law rule would best serve the interests of Michigan citizens while taking into consideration the prevailing customs and practices of the people?19

III. PARENTAL PREINJURY WAIVERS

The justices in the majority assert that under existing Michigan common law, a preinjury release signed by a parent waiving a child’s negligence claim in order to enable that child to participate in a sporting or recreational activity is unenforceable. However, they do not cite a single Michigan case holding that a preinjury parental waiver is unenforceable.20 Instead, they only *279cite cases involving parental waivers of existing claims. Until today, Michigan’s common-law rule against parental waivers has only been applied to the latter claims. I would not, as do the justices comprising the majority, extend our common-law rule against postinjury parental waivers to preinjury parental waivers. These waivers are very different.

The trial court held that the preinjury waiver here was enforceable, specifically noting the absence of “any Michigan case which says that a parent who signs a waiver like this one prior to a child engaging in an activity is engaging in an act which is a legal nullity.” Similarly, Judge BANDSTRA correctly stated, “There is no Michigan precedent explicitly discussing whether the postinjury rule against parental waivers should apply in a preinjury case.” Woodman, 280 Mich App at 157 (BANDSTRA, P.J., concurring). And Judge SCHUETTE also correctly remarked upon “the dearth of preinjury, parental-waiver-of-liability caées in Michigan . ...” Id. at 163 (SCHUETTE, J., concurring).

If the justices who make up the majority are correct that current Michigan common law precludes the enforcement of preinjury parental waivers, then the lack of any earlier decision actually stating this proposition is, to say the least, noteworthy, especially given that such waivers have been commonplace in this state and our country for decades. The lead opinion rightly states, “The underlying facts are simple and likely familiar to many parents with young children.” Ante at 233 (emphasis added). Doubtless, the facts are “likely familiar” precisely because generations of parents have routinely *280been confronted with such waivers as a condition to their children’s participation in sporting and recreational activities. As Judge SCHUETTE observed: “[A]n immense amount of youth activities — church groups, Boy Scouts, sports camps of all kinds, orchestra and theatrical events, and countless school functions — run and operate on release and waiver-of-liability forms for minor children.” Id. at 163-164 (SCHUETTE, J., concurring). In view, therefore, of the facts that (1) preinjury parental waivers have been ubiquitous in this state for decades, enabling children to participate in a wide array of sporting and recreational activities that might otherwise not be available, and (2) there is no Michigan case that has ever held that a parental preinjury waiver is unenforceable, or otherwise prohibited or contrary to public policy, what exactly is the basis for the confident assertion by a majority of justices that such waivers are unenforceable in this state?

The lead opinion correctly observes that in McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 192-193; 405 NW2d 88 (1987), this Court set forth “the common-law rule that a parent has no authority to waive, release, or compromise claims by or against a child.” This statement, however, was made in the course of an opinion that held that a particular statute created an exception to this common-law rule, and the cases cited in McKinstry in support of this rule all involved existing claims. McKinstry did not assert that the common-law rule applies to preinjury parental waivers, and it did not hold that such waivers are unenforceable. To make the point as clearly as possible, until the instant Court of Appeals decision, no existing Michigan case had held that the rule barring parental waivers applied in the preinjury context, and none had applied the rule in such a context, notwithstanding the familiarity of such waivers in this state. Thus, the *281precise question before this Court is genuinely an issue of first impression in this state.

rv APPLICATION OF THE COMMON-LAW

On the basis of the following considerations, I believe that the common law in our state should be clarified to hold that parental preinjury waivers are enforceable: (1) statutes and caselaw that have enhanced the legal autonomy of minors, (2) statutes and caselaw that have recognized parents’ authority to undertake important decisions regarding their children, (3) decisions of the United States Supreme Court that have ‘constitutionalized’ the rights of fit parents to undertake important decisions regarding their children, (4) statutes and caselaw that have granted protections to recreational providers, (5) freedom of contract principles, (6) evolution of the litigative environment in recent decades, and (7) persuasive decisions from other jurisdictions.

A. AUTHORITY OF MINORS

The lead opinion acknowledges six statutory exceptions to the rule that a minor lacks the capacity to contract. Ante at 237 n 14. Despite this list, however, the justices in the majority give no apparent weight to these exceptions. In reality, there are a far greater number of statutory exceptions to the two common-law rules that form the basis of the decision here, namely that (1) a child cannot bind himself or herself by contract and (2) a parent cannot bind a child by contract.

Concerning the common-law rule that a child cannot bind himself or herself by contract, the lead opinion acknowledges the common-law exception that a child *282can do so by a contract for necessaries.21 It also notes a statutory exception, MCL 600.1403, that provides that an infancy defense will not be recognized for breach of contract if a minor willfully misrepresented his or her age when entering into a contract. Under the common law, a child was not considered an adult until age 21, but our Legislature reduced this age to 18 in 1971,22 and for criminal matters, the effective age of majority is now 17.23

*283The common-law rule that a child is incompetent to enter into a contract has other exceptions. As a result of legislation,24 minors can now enter into enforceable contracts in these additional situations: (1) upon being emancipated by the family division of circuit court,25 (2) upon getting married,26 (3) upon entering into active duty with the United States military,27 (4) in order to open a savings account,28 (5) in order to receive substance abuse treatment,29 (6) in order to receive treatment for a venereal disease or HIY30 (7) in order to *284receive pregnancy-related services,31 (8) in order to receive mental health services,32 and (9) in order to purchase certain insurance policies.33 All but one of these statutory exceptions were adopted between 1956 and 1980.

Thus, there is a clear trend in Michigan public policy toward giving increased weight to the significant life decisions of minors by allowing them a limited measure of legal autonomy and responsibility. Indeed, minors are also considered competent to waive a variety of rights when charged with a crime. See, e.g., People v Simpson, 35 Mich App 1; 192 NW2d 118 (1971), which indicates that minors are competent to waive even constitutional rights when charged with a crime.34

*285The common-law rule that minors are incompetent to enter into contracts was predicated on the idea that minors must be protected from their own contractual follies and exploitation by adults. Holmes v Rice, 45 Mich 142; 7 NW 772 (1881); Frye v Yasi, 327 Mass 724, 728; 101 NE2d 128 (1951). These purposes comport with common sense and experience, but neither would be undermined by permitting a child’s parents to exercise their own prudence and judgment on behalf of their minor children in prospectively waiving negligence claims in order to allow their children to participate in recreational activities. As explained in Parham v J R, 442 US 584, 602; 99 S Ct 2493; 61 L Ed 2d 101 (1979), there is a presumption that parents possess what a child lacks in maturity, experience, and the capacity for judgment required for making life’s difficult decisions. Thus, it is not incompatible with the common-law rule concerning the limited ability of a minor to enter into legal contracts to allow the parent the right to permit or deny a child’s participation in sporting or recreational activities and to weigh the risks and benefits of that participation.

B. PARENTAL AUTHORITY

Concerning the common-law rule that a parent cannot bind a child by contract, the courts and the Legislature have found it increasingly appropriate to allow parents to provide consent to their children’s participation in numerous significant activities. As explained in Parham, 442 US at 602:

*286Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.. .. The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.

More recently, the United States Supreme Court has determined that the right of a parent to decide how a child will be raised is one of the oldest and most fundamental rights emanating from the “liberty” interest of the Due Process Clause of the Fourteenth Amendment. Troxel v Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (opinion by O’Connor, J.). In Troxel, a plurality cited the Court’s long history of recognizing that the family is a unit within which parents possess “ ‘broad . . . authority over minor children.’ ”35 Troxel, 530 US at 66, quoting Parham, 442 US at 602. Troxel also indicated that courts may not overturn decisions by a fit custodial parent “solely on [the basis of] the judge’s determination of the child’s best interests.” Troxel, 530 US at 67. Rather, courts must give some “special weight” to the parents’ determination of their children’s best interests. Id. Indeed, in Hunter v Hunter, 484 Mich 247, 258 n 16, 262; 771 NW2d 694 (2009), this Court recognized that Troxel “included forceful language describing the significance of parents’ fundamental liberty interest in the care, custody, and control of their children” before proceeding to hold that “Troxel established a floor or minimum protection against state intrusion into the