While Michigan is one of the few states with a statute specifically establishing the right to grandparenting time in child custody disputes, this right is quite limited and only applies if certain conditions are met. If you are faced with such a dilemma, it is important for you to be familiar with Michigan law as it pertains to grandparents’ rights regarding grandchildren.
When Grandparenting Time may be sought in Michigan
In 2003, the then-existing grandparenting time statute was declared unconstitutional by the Michigan Supreme Court. Although the Court cited several grounds on which they based this decision, the primary finding was that the statute did not give proper deference to a fit parent’s decisions regarding grandparent visitation.
In 2005 the current statute was enacted under the Child Custody Act of 1970. MCL 722.27b sets forth the specific and limited circumstances under which a grandparent can seek an order awarding grandparenting time, which include:
(a) An action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court;
(b) The child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;
(c) The child’s parent who is a child of the grandparents is deceased;
(d) The child’s parents have never been married, they are not residing in the same household, and paternity has been established;
(e) Legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; or
(f) In the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.
The above list of circumstances, limited in and of itself, merely gives a grandparent the grounds to file a request for grandparenting time with the Court. Meeting one or more of these circumstances does not automatically entitle a grandparent to grandparenting time. Stated another way, a grandparent has the right to file for, but not necessarily a right to receive, grandparenting time.
Establishing a Right to Grandparenting Time
The burden placed on the grandparent to establish grandparenting time is extremely high. According to the statute, there is a presumption that a “fit” parent’s decision to deny grandparenting time does not create a “substantial risk of harm to the child’s mental, physical, or emotional health.”
In order to rebut this presumption and prevail on their request, a grandparent must be able to prove by a preponderance of the evidence either that:
(1) The parent of the child is unfit to care for that child; or
(2) The denial of grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health.
If the grandparent does not meet this burden and rebut the presumption, the Court must dismiss the grandparent’s motion. Additionally, the statute also permits the Court to automatically dismiss the motion without a hearing if both parents sign an affidavit stating that they are opposed to an award of grandparenting time. In other words, if both parents agree in a signed affidavit, the Court may not even afford a grandparent the opportunity to argue that the denial of grandparenting time is harmful to the child.
Best Interests of the Child Factors and Grandparenting Time
If the grandparent does meet their burden and rebut the presumption, then the Court will proceed to a determination of whether or not an award of grandparenting time would be in the best interests of the child.
To make such a determination, the Court must consider a set of best interest factors, and make a finding that the grandparent has proven, by a preponderance of the evidence, that it is in the best interests of the child to enter an order for grandparenting time. Pursuant to MCL 722.27b(6), the factors the court must consider are:
(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 grandparent, 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 reason; and
(j) Any other factor relevant to the physical and psychological well-being of the child.
If the Court does find that the grandparents have proved by a preponderance of the evidence that it is in the child’s best interest to have grandparenting time, then the Court shall enter an order for grandparenting time. The order must provide for reasonable grandparenting time, but can do so by either general or specific terms and conditions, as the Court deems appropriate.