A Brief History
The United States Supreme Court has held that parents have a fundamental constitutional right to raise their children. The court reaffirmed this in the case of Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000). In that case, the Troxels sought visitation rights with their grandchildren under a Washington statute. The statute was held to be unconstitutional as it applied to the Troxels because it did not give any special weight to fit parents’ constitutional right to raise their children.
Three years later the case of DeRose v DeRose, 496 Mich 320; 666 NW2d 636 (2003), was decided by the Michigan Supreme Court. In that case, a grandmother sought visitation rights with her granddaughter under Michigan’s grandparenting time statute. The court in DeRose held that the Michigan statute was unconstitutional because it did not require a trial court to give any deference to fit parents’ decisions about the rearing of their children.
In direct response to the decisions in Troxel and DeRose, the Michigan legislature amended its grandparenting time statute in 2004. In 2007, the revised statute was put to the test in the case of Keenan v Dawson, 275 Mich App. 671, 739 NW2d 681 (2007). In that case, the Keenans sought visitation rights with their grandson after the child’s mother was murdered. Although no charges were ever filed, the child’s father was a suspect in the murder. The court held that the new Michigan statute, was constitutional and that it was in the best interest of the child in that case to have visitation with his grandparents.
In Michigan, a grandparent may seek visitation time under 1 of the following circumstances:
- An action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court.
- The child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled.
- The child’s parent who is a child of the grandparents is deceased.
- The child’s parents have never been married, they are not residing in the same household, and paternity has been established by the completion of an acknowledgment of parentage under the acknowledgment of parentage act, . . . by an order of filiation entered under the paternity act, . . . or by a determination by a court of competent jurisdiction that the individual is the father of the child.
- Except as otherwise provided . . . , legal 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.
- In the year preceding the commencement of an action . . . for grandparenting time, the grandparent provided an established custodial environment for the child . . . , whether or not the grandparent had custody under a court order.
Under Michigan law it is presumed “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.” A grandparent can rebut this presumption if that grandparent can prove by a preponderance (more likely than not) of the evidence that denial of grandparenting time creates a “substantial risk of harm to the child’s mental, physical, or emotional health.” If this cannot be proven, a complaint or motion by the grandparent will be dismissed. The court must dismiss a complaint or motion if two fit parents both oppose grandparenting time.
If the grandparent can rebut the presumption mentioned above, the court must consider whether an order for grandparenting time is in the best interests of the child. The court must consider all of the following:
- The love, affection, and other emotional ties existing between the grandparent and the child.
- 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.
- The grandparent’s moral fitness.
- The grandparent’s mental and physical health.
- The child’s reasonable preference, if the court considers the child to be of sufficient age to express a preference.
- The effect on the child of hostility between the grandparent and the parent of the child.
- 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.
- Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent.
- 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.
- Any other factor relevant to the physical and psychological well-being of the child.
If the grandparent can rebut the presumption mentioned above the court will consider the factors listed. If the court determines after considering all of the factors that it is in the best interest of the child, an order will be entered providing reasonable grandparenting time.
If you would like more information regarding Grandparent Rights in Michigan, feel free to contact me. Together we can discuss your situation and how the law may be able to help.