Grandparenting Time Award Set Aside By Court Of Appeals

Appellate court incorporates Troxel v Granville definition of “fit”

into Michigan’s Child Custody Act

A trial court’s finding that divorced parents were not “fit” was incorrect and, as a result, the Michigan Court of Appeals reversed a grandparenting time award based on that erroneous finding.

Notably, the Court of Appeals published decision in Geering v King (issued June 13, 2017) incorporates the definition of “fit” established by the U.S. Supreme Court in Troxel v Granville into Michigan’s Child Custody Act. The Troxel definition of a “fit” parent is: “a parent who adequately cares for his or her children.”


Trial Court Grants Grandparenting Time

In Geering, the parents were divorced and had four children. Despite various disputes during the divorce proceedings, the parents eventually stipulated to a custody and parenting time order. The paternal grandfather later filed a motion for grandparenting time. The parents jointly opposed the grandparenting time motion with an affidavit, asserting they were fit parents under the Child Custody Act, MCL 722.27b, and that grandparenting time was not in the best interests of the children.

MCL 722.27b(5) says:

“If 2 fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court shall dismiss a complaint or motion seeking an order for grandparenting time.”

The trial court ruled the parents were not fit and granted the grandparenting time motion. The trial court held the parents were not fit because, due to their “inconsistency [in] discipline, the inconsistency in communication, the inconsistency in co-parenting, [and] not fostering the relationship with the other parent,” they had “created a substantial risk of harm to all four of [their] children’s mental, physical, emotional health.”


Court Of Appeals: No Grandparenting Time

The Court of Appeals reversed the trial court’s decision, using the Troxel definition of “fit” to hold the trial court’s finding that the parents were not “fit” was against the great weight of the evidence.

In its analysis, the Court of Appeals noted the terms “fit” and “unfit” are not defined in MCL 722.27b and that no Michigan court has yet defined the terms in this context. However, the appellate court pointed out that Troxel defined “fit” and that Troxel led to the Michigan Supreme Court’s decision in DeRose v DeRose, where the Court found that Michigan’s grandparenting visitation statute was unconstitutional. The Court of Appeals explained that both Troxel and DeRose led to MCL 722.27b being amended to its present form. As a result, the appellate court specifically incorporated the Troxel definition of “fit” into the Child Custody Act.

The Court of Appeals then applied the Troxel definition of “fit” to the parents in Geering. The appellate court noted that although the parents had difficulty communicating with each other, were inconsistent in handing out discipline and were inconsistent in co-parenting, those issues had been resolved by the time they stipulated to a parenting time and custody order. Therefore, the Court of Appeals said there was no evidence that the parents were not adequately caring for their children — in other words, they were “fit” parents.

In conclusion, the Court of Appeals noted it did not necessarily agree with the parents’ decision to largely exclude the grandfather from the children’s lives. However, the appellate court said it could not deprive the parents of their constitutionally protected right to raise their children as they deemed appropriate. According to the Court of Appeals, the parents were “fit” and, as such, it was their decision — and not the court’s — as to how much time the grandfather spent with the children.


If you have questions about visitation and custody, or other domestic relations matters, contact the Sinas Dramis Law Firm today. Our experienced Michigan family law attorneys can address your concerns and provide the quality legal assistance that you need.

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