I am Cameron Goulding, a family law attorney in the Troy area of Oakland County, Michigan.  As a divorce lawyer, it is very important to stay on top of the changes and developments in this area of law.  The matter of Roger and Ellen Brainard v Angela Brainard, Michigan Court of Appeals, unpublished decision, Docket No. 312336 (March 19, 2013), deals with the issue of a change of custody from the grandparents to the parent of minor children.

In that case, the mother and father lived in Tennessee and in 2007 the Tennessee Department of Children’s Services removed the children from the parents because the father had sexually assaulted one of the children and the mother had allegedly failed to protect the child.  Subsequently the mother gave birth to a fourth child that CPS did not remove from her custody.    The court terminated the father’s parental rights but the mother entered into an order granting custody to to of the minor children and a guardianship over the third minor child to the paternal grandparents (the parents of the sexually abusive father) and CPS withdrew its petition to terminate her parental rights.  The order provided that the mother could seek to regain custody in the future.

The grandparents lived in Jackson, Michigan and the mother moved to Jackson with the fourth child as well.  The grandparents had custody of the three children until 2011 when the grandparents filed a petition seeking custody over the third child as well.  The mot eh appeared at the hearing and objected to the grandparents retaining custody of all three children.  The court ordered parenting time for the mother over several months with all three children and slowly increased the amount of allotted time.  Finally, the  court held hearings beginning in August 8, 2012.  The court found that two or three of the “best interest” factors favored the mother and the other factors favored neither party.  The court then applied a presumption that the mother should have custody unless the grandparents proved by clear and convincing evidence that it was not in the children’s best interests.

The court then changed custody to the mother and the grandparents appealed.  The Michigan Court of Appeals found that the trial court had properly determined the case and the burden of proof.  This is interesting because typically where there is a contest between two parents over custody and one parent has had custody for a significant period of time, the burden is on the parent seeking to change custody to prove that there is first good cause or a change of circumstances in order to revisit the custody issue and then that parent must prove that a change is in the best interests of the child by clear and convincing evidence.  However, where it is a parent that is seeking to change custody against a third-party that is not a parent, the analysis and burden of proof is placed on its head due to the constitutional right to parent making it much easier for a parent to regain custody from a third party.  

This may be a good or bad thing for the children depending on how much emphasis one places on stability for the children.  It is certainly hard on the grandparents whom, as in this case, stepped in and provided a home for the three children for four years.  This is why I often suggest to grandparents that face such a situation that the grandparents at least discuss terminating the parent’s parental rights and adopting the children.  This way the grandparents do not have to worry about the mother or father subsequently coming in and taking the custody away from them but at the same time the grandparents have the ability to facilitate the parent’s involvement with the children.