I am a family law attorney with my office in the Rochester area of Oakland County, Michigan, easily accessible to Clarkston, Holly, Troy, Bloomfield, Lake Orion and Oxford. I frequently speak with grandparents that are having difficulty getting to see their grandchildren. I feel very strongly for these people and the children, whom are being deprived of this very important relationship and I do my best to help them pursue their rights under the newer Michigan grandparenting time statute.
Is the current statute in Michigan that allows a grandparent to seek court-ordered visitation with a grandchild constitutional?
First, I should start with a little background without getting too in-depth regarding the legal aspects and court cases before I get into the current state of the issue in Michigan. There was a statute in Michigan that provided a grandparent the right to seek visitation with a grandchild against the wishes of the child's parents which was less stringent than the current statute. Then the United States Supreme Court struck down a grandparenting statute which was similar to our statute because (very basically) it placed the burden on the parent to prove that the grandparent should not have parenting time and this was an undue interference with the 14th Amendment right of a parent to make decisions regarding the care, custody and control of their children.
Michigan then enacted a new grandparenting time statute. The matter of Varran v Granneman, COA 321866; 322437, October 13, 2015 (For Publication) tested the constitutionality of the new statute. In that case, the mother initially had the custody of A (the child) after he was born in 2002, however when A was only 8 months old he went to live with his father, who resided with his parents (grandparents). This lasted until 2005 when A was 2½ years old, when the grandparents asked the father to leave due to hostility and conflicts. A remained with the grandparents and the father initially visited once a week at the grandparents' home. Within a few months, father had A with him on Saturday nights at his apartments. In 2007, the mother passed away and father began having A on Friday and Saturday nights. In summer 2012 A began living with father during the week, and visiting with the grandparents every weekend. In the spring of 2013, the father reduced A's visits to every other weekend. In May 2013, he told them that they would no longer have overnight visits with A and that any contact between them and A would be under his supervision.
The grandparents filed a motion for grandparenting time with the family court. After a trial, the court granted visitation on a “permanent” basis every other Saturday from 10:00 am until Sunday at 6:00 pm. The father appealed on a variety of bases but the focus of the appeal was the constitutionality of the new statute.
The Michigan Court of Appeals found that the statute is constitutional because it provides sufficient protection to the parent's constitutional right to raise her or his child. First, the grandparent must have standing (standing means the right to file a case in the first place) and the rules for standing provide a first wall of protection. In order to have standing to seek grandparenting time, the grandparent must meet one of the following – (a) there is a divorce pending with the court between the parents, (b) parents are already divorced, (c) child's parent that is a child of the grandparents' is deceased, (d) the parents have never been married and the parents are not residing together, (e) legal custody has been granted to someone other than the child's parent or (f) the grandparent provided an established custodial environment for the child.
Second, even if a grandparent has standing, then the burden of proof is shifted to the grandparent. Under the new statute it specifically states that in order to give deference to the parent's rights and his or her decision to deny grandparenting time, the grandparent must prove by a preponderance of the evidence that the parent's decision to deny the visitation creates a substantial risk of harm to the child's mental, physical or emotional health. If the grandparent cannot overcome this presumption, then the court must dismiss the case.
Under this fact pattern, it is clear that the grandparents had standing to file the petition seeking time with the grandchild. The grandparents then hired an expert (always a wise thing to do in these cases) to provide testimony about the risk of harm to the child's health. Even though the judge in the end excluded the expert's testimony with regards to his opinion about the effect on the child's mental health, the expert's testimony with regards to what the child stated to the expert got into evidence. This was crucial, the child told the expert that he feels as though he merely exists until the next time he gets to see his grandparents and is very sad about losing his grandparents. He had grown up referring to his grandparents as “Mom” and “Pop” and that he now felt as though he has lost the only home he had known. A also told the expert that he is afraid of not being able to see his grandparents, he is homesick and lonely, he is most welcome and belongs at his grandparents and that if he could not see his grandparents anymore, his life would be horrible, he would be sad, angry and depressed and not have much to look forward to. This is sad, striking testimony and proves that the child would be at risk of harm if the judge denied the grandparenting time.
Fortunately, the grandparent statue in Michigan is constitutional and under certain circumstances, grandparents may obtain court-ordered visitation with grandchildren.