The Right To Grandparenting Time In Michigan: Legal Requirements and Procedure

The Michigan Legislature passed the first version of the grandparenting visitation statute in 1982 which granted standing for grandparents to petition the circuit court for potential court-ordered visitation of their grandchildren. By 1999, all fifty states had a version of this statute in their body of law. However, grandparent visitation petitions were being challenged by parents who alleged these orders violated their constitutional right to raise their children in the way that they seem fit. Those earlier statutes permitted trial judges to make grandparenting orders if they were in “the best interests of the children”, even over the parent’s objections.

The United States Supreme ruled in Troxel v Granville, 530 U.S. 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000) that fit parents have a fundamental, constitutional right to raise their children and such decisions should special deference or weight. That case involved a statute in the State of Washington that allowed ANY person to petition the court for visitation rights at any time, including custody proceedings, and the trial court had deference to grant such an order if it was in the best interest of the children. Jenifer and Gary Troxel sought greater visitation with their granddaughter than the child’s mother would allow. Their son, the father of the children, had committed suicide and the mother married a man who ultimately adopted the children. The trial court, over the mother’s objection, granted overnight and summer visitation to the grandparents. The United States Supreme Court determined that the statute was unconstitutional because it was both overbroad and interfered with the mother’s right to raise her children even without determining that she was an unfit parent. It is presumed that “so long as a parent adequately cares of his or her children (i.e. is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s child.” Id. at 68-69. In short, parents are presumed fit and fit parents can decide not to allow their children to see their grandparents. While grandparenting time statutes are not unconstitutional per se, the U.S. Supreme Court requires valid versions of these laws to consider the very high standard of parental fitness.

The Michigan Supreme Court evaluated its own grandparenting statute in DeRose v DeRose, 469 Mich 320, 666 NW2d 636 (2003). It found that the Michigan statute was “fatally similar” to the Washington statute struck down in Troxel. Anyone could petition the court for parenting time and custody on a “best interests of the children” standard, even over the parent’s objections. There was no provision considering the right of fit parents to make decisions regarding the care, custody and control of the minor children. As a result, that version of the grandparenting statute was deemed unconstitutional. In 2004, the Michigan Legislature passed an amended grandparenting statute that conformed to the standards in both Troxel and DeRose. Since the amendments, the Michigan Supreme Court and the Michigan Court of Appeals have upheld the constitutionality of the statutes despite additional challenges from frustrated parents.

According to MCL 722.7b(1), “[a] child’s grandparent may seek a grandparenting time order under 1 or more of the following circumstances:

• (a) An action for divorce, separate maintenance or annulment involving the child’s parents is pending before the court.

• (b) The child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled.

• (c) The child’s parent who is a child of the grandparents is deceased.

• (d) The child’s parents have never been married, AND they are not residing in the same household, AND paternity has been established by the completion of an affidavit of parentage… an order of filiation… or by a determination by a court of competent jurisdiction that the individual is the father of the child.

• (e) … [L]egal custody of the child has been given to a person other than the child’s parent, OR the child is placed outside of and does not reside in the home of a parent.

• (f) In the year preceding the commencement of an action…, the grandparent provided an established custodial environment for the child…, whether or not the grandparent had custody under a court order.”

The grandparent must file the action in the court that has continuing jurisdiction over the divorce, separate maintenance or custody action governing the grandchild or, if there is no existing court action, file the action in the county where the child resides. The action MUST be filed with an affidavit setting forth fact supporting the action. Notice must be given to each person who has legal custody of the child AND who has an order for parenting time with the child.

MCL 722.7b(4)(b) states:

“In order to give deference to the decisions of fit parents, it is presumed in a proceeding under this subsection that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health. To rebut the presumption created in this subdivision, a grandparent filing a complaint or motion under this section must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. If the grandparent does not overcome the presumption, the court shall dismiss the complaint or deny the motion.”

However, the trial court CANNOT grant an order for grandparenting time under any of the following circumstances:

• If the parents are married (assuming there is no pending divorce or separate maintenance action) and the child resides in the parent’s home, then grandparents have no standing whatsoever to pursue this action.

• If the grandparent is the parent of a father who has NEVER been married to child’s mother and has NOT establishing his paternity by either completing an acknowledgment of parentage and has NOT been determined by a court of competition jurisdiction to be the child’s father and an order of filiation has not entered, then that grandparent cannot seek grandparenting time UNLESS that child’s putative father has provided substantial and regular support for the child in accordance with his ability to provide support or care. MCL 722.7b(2).

• If two fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court SHALL dismiss a complaint or motion seeking an order for grandparenting time. This does NOT apply if one of the fit parents is a stepparent who adopted the child under the Michigan adoption code (MCL 710.21 to MCL 710.70) and the grandparent seeking the order is the parent of the child’s parent who is deceased or whose parental rights have been terminated. MCL 722.7b(5).

• If the grandparent has previously filed a complaint or motion for parenting time within the preceding two year period, he or she is prohibited from filing again UNLESS the trial court finds there is good cause to consider it. Otherwise, the grandparent cannot file more than once every two years. In a hearing to determine whether there is good cause shown to file again within a two year period, the trial court may grant reasonable attorney fees to the prevailing party upon request. MCL 722.7b(8).

• If the child is adopted or placed for adoption under the Michigan Adoption Code (MCL 710.21 to 710.70), this terminates the right of a grandparent to commence an action for grandparenting time. However, adoption of a child by a stepparent under the Michigan Adoption Code (MCL 710.21 to 710.70) does NOT terminate the right of the parent of the child’s deceased parent to commence an action for grandparenting time with the child. MCL 722.7b(13).

If a grandparent can meet the burden of proof to overcome all of the preceding legal hurdles and presumptions, then the trial court shall consider whether it is in the best interest of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that it is in the children’s best interest, then an order shall enter providing for reasonable grandparenting time with general or specific terms and conditions. According to MCL 722.7b(6), the court shall consider all of the following factors in determining best interests of the child:

• (a) The love, affection, and other emotional ties existing between the grandparent and the child.

• (b) The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent.

• (c) The grandparent’s moral fitness.

• (d) The grandparent’s mental and physical health.

• (e) The child’s reasonable preference, if the court considers the child to be of sufficient age to express a preference.

• (f) The effect on the child of hostility between the grandparent and the parent of the child.

• (g) The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child.

• (h) Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent.

• (i) Whether the parent’s decision to deny, or lack of an offer of, grandparenting time is related to the child’s well-being or is for some other unrelated reason.

• (j) Any other factor relevant to the physical and psychological well-being of the child.

An order granting grandparenting time does not create any legal custody or parental rights in the grandparent, nor does it prevent the court from making decisions regarding the custody, parental rights or adoption of the child. MCL 722.7b(10). The trial court is also prohibited from using the existence of a grandparenting time order as a primary reason to deny a request by the child’s parent with legal custody to relocate with the child. MCL 722.7b(9).

According to MCL 722.7b(11), a court shall not modify or terminate a grandparenting time order unless it finds by a preponderance of the evidence that “on the basis of facts that have arisen since entry of the grandparenting time order or were unknown to the court at the time it entered that order, that a change has occurred in the circumstances of the child or his or her custodian and that a modification or termination of the existing order is necessary to avoid creating a substantial risk of harm to the mental, physical, or emotional health of the child.”

Here is some case law relating to grandparenting time awards in Michigan since the statute was modified in 2004:

• Keenan v Dawson, 275 Mich App 671; 739 NW2d 681 (2007) – The mother of a two-year old child disappeared and was found subsequently murdered. The father, who had a strained relationship with the mother’s extended family, denied access of the maternal grandparents to his son and the grandparents subsequently petitioned for a grandparenting time order. The trial court ruled, and the Court of Appeals upheld, that the maternal grandparents met their burden of proof by showing by a preponderance of the evidence that the father’s decision to deny all access to the grandson will create a substantial risk of harm to the child’s mental and emotional health. The evidence was supported by expert witness testimony that, to support the child’s mental and emotional health, it was vital for the child to have his mother’s memory kept alive for him given the tragic loss and that a relationship with the maternal grandparents would enhance the child’s knowledge about his mother’s maternal role, medical history, preferences,hobbies and other desirable information.

• Book-Gilbert v Greenleaf, 302 Mich App 538; 840 NW2d 743 (2013) – After the mother’ death and the father’s incarceration, a minor child was placed in a guardianship with a relative of the deceased mother. The paternal grandmother sought bur was denied access to her grandchild by the guardian and subsequently filed suit. The guardian argued that she should be entitled to the “fit parent” presumption under MCL 722.7b(4)(b) that if she opposes grandparenting time then the paternal grandmother must show that such an decision does not create a substantial risk of harm to the child’s mental, physical or emotional health. The Michigan Court of Appeals ruled that the presumption only applies to parents, not guardians, so the guardian is NOT entitled to this presumption for the grandmother to overcome.

• Porter v Hill, 495 Mich 987; 844 NW2d 718 (2014) – The grandparents in this case are the parents of Russell Porter, whose parental rights to his two children were involuntarily terminated. Russell Porter later divorced the mother and paid child support until his untimely death. The grandparents sought visitation but the trial court and Michigan Court of Appeals determined that they had no standing to file such an action because their son’s parental rights were involuntarily terminated. The Michigan Supreme Court overruled the lower courts and determined that the deceased father still met the definition of natural parent or biological parent under the Michigan Child Custody Act despite the involuntary termination of parental rights. Therefore, the grandparents had standing to pursue a grandparenting time order.

• Varran v Granneman (On Remand), 312 Mich App 591; 880 NW2d 242 (2015) – The Michigan Court of Appeals, after remand from the Michigan Supreme Court, determined that the granting or denial of a grandparenting time order is a question that “affect the custody of a minor” within the meaning of MCR 7.202(6)(a)(iii) and is therefore appealable BY RIGHT, not by leave, to the Michigan Court of Appeals by any aggrieved party (e.g. the grandparents denied grandparenting time or the parent opposed to it). The decision also determined that the grandparenting statute (MCL 722.7b) is constitutional because it provides sufficient protection to the parent’s constitutional right to raise his or her child.

• Geering v King, 320 Mich App 182; 906 NW2d 214 (2017) – The Michigan Court of Appeals overturned a grandparenting time order issued by the trial court even when both parents signed an affidavit pursuant to MCL 722.7b(5) opposing the request. The parents were in a very adversarial divorce involving multiple hearings over several years contesting custody and parenting time. However, both parents were able to agree that they object to the parenting time request. The Michigan Court of Appeals determined that the hostility and disagreement between the parents on several aspects of their children’s lives did not render them “unfit” under the Troxel definition and, therefore, no basis existed to grant the order over the parent’s opposition.

An action for grandparenting time has specific legal requirements and tough evidence thresholds that must be met to prevail. If you are seeking grandparenting time or you are a parent defending against such an action, do not hesitate to contact the experience family law attorneys at Kershaw, Vititoe & Jedinak PLC for assistance in your legal matter.