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).
October 31, 2011
by Carl Sears filed under