Do Michigan grandparents have rights?  The answer is now:  'Yes, in certain circumstances.' 

The U.S. Supreme Court's 'Problem' with 'Grandparent Visitation' Rights

In Troxel v Granville, 530 US 57, 65; 120 S Ct 2054, 2060 (2000), the Supreme Court struck down a Washington grandparent visitation statute because it unconstitutionally infringed on parents' fundamental constitutional rights.  According to the Supreme Court, "the interest of parents in the care, custody and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court."  The Court stated that statutes allowing grandparent visitation orders to be imposed over parental objection "present questions of constitutional import."  In fact, the Court flatly declared that parents have a fundamental right to the "care, custody and control of their children," and that grandparent visitation cases implicate this fundamental right. 

The Presumption Against Grandparents' Rights

The U.S. Supreme Court requires state courts considering non-parent visitation petitions to apply "a presumption that fit parents act in the best interests of their children." Troxel, 530 US at 69; 120 S Ct at 2061, 2062.  Troxel requires that State courts must give "special weight" to a fit parent's decision to deny non-parent visitation.  "Choices [parents make] about the upbringing of children . . . are among associational rights . . . sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect." MLB v SLJ, 519 US 102, 116-117 (1996).  This principle must inform our understanding of the “special weight” Troxel requires courts to give to parents’ decisions concerning whether, when and how grandparents will associate with their children.  Even though Troxel does not define "special weight," previous Supreme Court precedent indicates that "special weight" is a strong term signifying very considerable deference. See, e.g., Comstock v Group of Institutional Investors, 335 US 211, 230 (1948); Tibbs v Florida, 457 US 31 (1982). The "special weight" requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent's wishes will only be overcome by some compelling governmental interest and overwhelmingly clear factual circumstances supporting that governmental interest. 

Michigan's Solution to the 'Problem'

On January 3, 2005, the Grandparenting Time Bill was signed into law by Governor Jennifer Granholm, after having been unanimously passed by the Michigan House and Senate.  The law creates new "rights" for grandparents following the Michigan Supreme Court Decision in Derose v Derose, 469 Mich 320; 666 NW2d 636 (2003), which held Michigan's former grandparent visitation law to be unconstitutional. 

In Derose, the Michigan Supreme Court asked the Michigan Legislature to redraft the Michigan Law in order to make it constitutional, and to allow grandparents and grandchildren to have access to each other in appropriate circumstances.  The legislature enacted MCL 722.27b, the statute set forth below.  MCL 722.27b enacts safeguards to protect parental rights as guaranteed by the Constitution, as required by the Michigan Supreme Court.  When grandparents have been denied access to grandchildren, the new law gives grandparents an opportunity to go to court to show why they should have a right to see them. 

Circumstances Under Which Grandparenting Time May Be Permitted

MCL 722.27b allows grandparents to request relief from the court to see their grandchildren if they have been denied by the parent in any of the following circumstances: 

1. If there is a divorce, separate maintenance, or annulment action pending between the child's parents, or such an action has already been finalized; or

2. The grandchild was born out-of-wedlock and the parents are not living together.  However, this only applies to grandparents of the alleged father if he has been declared legally to be the father of the child by a proper court proceeding and the child's father provides child support in accordance with his ability to provide support or care for his child; or

3. Legal custody of the child has been given to a person other than the child's parent or the child does not live in the parent's home.  This is other than a child who has been adopted by a person who is not the child's step-parent; or 

4. A grandparent has taken care of a grandchild during the year before they request visitation, whether or not they have done so by a valid court order. 

The Petition For Grandparenting Time

If a grandparent falls into any of the above categories and has been denied visitation, the grandparent has  a right to bring an action in the family court that has heard the prior action, such as a divorce or paternity action.  If no prior action has been filed, a new action must be brought in the circuit court in the county where the grandchild resides.  The law imposes a notice requirement:  Anyone with legal custody or an order for parenting time of the child, must be given notice of the grandparenting action or motion. 

Overcoming the Presumption Against Grandparenting Time

On filing an action or motion for grandparenting time, the court must conduct a hearing.  At the hearing, the court will presume that a "fit" parent's decision to deny a grandparent visitation request does not create harm to the child's mental, physical or emotional health.  The grandparent who is requesting visitation has the burden to show the court by a preponderance of evidence (meaning more than 50%), that the parent's decision to deny grandparenting time does in fact creates mental, physical, or emotional harm to the grandchild.  If the grandparent cannot overcome the presumption, the court must dismiss the grandparent's petition.  If the grandparent overcomes the presumption (that is, that denial of grandparenting time has a potential to create a risk of harm either to the grandchild's physical, mental or emotional health), then the court moves on to the next step. 

What Kind of Grandparenting Time May the Court Allow?

If the court finds that the grandparent has overcome the presumption in favor of a fit parent, the court next looks to the following factors in deciding how much grandparenting time should be allowed: 

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 parent, 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 issue.

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

Mediation and the Friend of the Court

If the court determines that the grandparent has met the standard for rebutting the presumption, the court may attempt to resolve the dispute by referring the grandparent's request to mediation or to the Friend of the Court.  The court can decide all issues for itself if it chooses not to make a referral. 

When Both Parents Oppose Grandparenting Time

The Grandparent Visitation Law does set forth a provision that if two fit parents, which does not include a step-parent, sign an affidavit opposing the grandparent visitation request, then the court must dismiss a grandparent's request for such visitation.

Standard of Proof in the Event of a Constitutional Challenge

The Legislature enacted a safeguard that applies if a challenge to this law is ever made in regard to the standard of proof to which the Michigan Legislature has set forth, which is currently the preponderance of evidence. If this is ever appealed into the appellate courts, and the Michigan Supreme Court later determines that the burden of proof should be made greater than preponderance of the evidence, such as a clear and convincing evidence standard, then the statute would automatically revert from the preponderance of the evidence to a clear and convincing evidence standard. The legislation intentionally put this into the body of the law in order to make sure that the Michigan law will never be ruled unconstitutional again, and that grandparents will always be able to maintain their right to see their children, even if the burden of proof is changed to the higher standard that more clearly protects the "special weight" that must be given to a fit parent's decision to deny non-parent visitation. Troxel v Granville, 530 US 57, 65; 120 S Ct 2054, 2060 (2000). 

Attorney Fees

The normal rule in family law cases is that each party pays his or her own attorney.  However, the grandparenting time statute provides that any reasonable attorney fees to the prevailing party in any grandparent visitation request may be granted at the discretion of the court for either the parent or the grandparent, after the hearing.