Michigan Family Law: Grandparenting Time

Can Grandparents successfully petition a court to enforce visitation rights with their grandchildren?

  

   Prior to 2003, in Michigan, grandparents could successfully seek an order for grandparenting time with their grandchildren if they could prove it was in the best interests of their grandchildren to spend time with their grandparents.  Per that statute, if a child custody dispute between the parents was pending before a court, the grandparents could file a petition and be awarded visitation with their grandchildren, even if the parents objected.   

   In 2003, the Michigan Supreme Court ruled that the existing Michigan law was unconstitutional because it did not give deference to the preference of fit parents.  In other words, the existing law did not presume that fit parents would make the best decision for their own children.  The Michigan Supreme Court decision was in line with an earlier United States Supreme Court decision that overturned a similar Washington law on the grounds that fit parents have a Constitutional right to raise their children in accordance with the law, and without interference by the government, or by others.

   Following the invalidation of the existing law, Michigan passed a new law in 2005 that established specific criteria that had to be met before grandparents could be awarded grandparenting time. The new law, MCL 722.27b(1), established six circumstances under which grandparenting time may be awarded:

1) an action for divorce, separate maintenance, or annulment involving the child's parents is pending before the court;

2) the child's parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;

3) the child's parent who is a child of the grandparents is deceased;

4) the child's parents have never been married, they are not residing in the same household, and paternity has been established;

5) 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; or

6) in the year preceding the commencement of the 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.

   The other key component of the statute, and maybe the key component, is that the statute creates a presumption that a fit parent's decision to deny grandparenting time does not create a substantial risk of harm to the grandchildren.  Whereas the old statute, as mentioned above, only required proof that grandparenting time would be in the best interests of the children, the new statute requires grandparents to prove that denying grandparenting time would negatively impact the grandchildren's mental, physical, or emotional well-being. The new 2005 statute also forbids grandparents from filing more than once every two years.  

   This new statute has been upheld as constitutional by the Michigan Court of Appeals on the grounds that grandparents do not have a fundamental constitutional right to a relationship with their grandchildren, and that grandchildren likewise do not have a fundamental constitutional right to a relationship with their grandparents. As mentioned above, the new Michigan statute gives great deference to fit parents' right to choose how to raise their own children; part of that right is to choose who their own children do, or do not, have a relationship with.  

  The practical effect of this new statute, and the Michigan Court of Appeals determination that the statute is constitutional, is that grandparenting time is almost never awarded in Michigan.  Although the new 2005 statute provides six circumstances in which grandparenting time may be awarded, judges in Michigan usually honor the right of parents to make that decision for their own children.  

To learn more about this topic, please visit my website at www.toburenlaw.com.