When spouses divorce and children are involved, the entire family, even extended family, can be affected. Often, additional Family Law issues arise as a result of divorce or legal separation. One of these issues is grandparent visitation. The family law attorneys at Kronzek & Cronkright, PLLC are expert lawyers well suited to assisting you with any grandparent visitation issue. Contact us online or call (248) 479-6200 today.
In our decades of experience practicing Family Law in Oakland County, we have witnessed many possible side effects of marital dissolution, and have equipped ourselves with the tools, experience, and knowledge necessary to assist our clients. We have compiled this brief assessment of grandparent visitation to help you understand how, and if, grandparents can acquire visitation with their grandchildren.
A Bit of History Regarding Grandparent Visitation
At common law, grandparents could not petition courts for visitation, a fact that changed in most states when legislatures began enacting statutes addressing grandparent visitation. Many of these statutes allowed grandparents to seek court-ordered visitation with their grandchildren under certain circumstances. However, grandparent visitation rights have diminished significantly in the last fifteen years, mainly as a result of constitutional implications.
Before June of 2000, grandparents could petition a Michigan court to gain visitation with a child if such visitation served the child’s best interests. Today, the process of obtaining grandparent visitation rights through Michigan courts is much more extensive. To understand the process that grandparents must go through to obtain court-ordered visitation with their grandchildren requires a brief synopsis on the background of this body of law.
In the case of Troxel v. Granville, the United States Supreme Court issued an opinion which drastically impacted the inherent right of grandparents to have visitation with their grandchildren. In its opinion, the court affirmed that the United States Constitution affords parents the fundamental right to “direct the upbringing of their children” and that a state cannot unconstitutionally infringe upon that right. In 2003, the Supreme Court of Michigan closely followed suit when it ruled, in DeRose v. DeRose, that a Michigan statute affecting parents’ rights to make decisions regarding their children must afford parents deference and presume that they are fit to make such decisions.
In Michigan, MCL 722.27b contains the law concerning grandparent visitation. Grandparent visitation can be requested only under the following circumstances:
(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 by the completion of an acknowledgment of parentage under the Acknowledgment of Parentage Act, 1996 PA 305, MCL 722.1001 to 722.1013, by an order of filiation entered under the paternity act, 1956 PA 205, MCL 722.711 to 722.730, or by a determination by a court of competent jurisdiction that the individual is the father of the child.
(e) Except as otherwise provided in subsection (13), 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.
(f) In the year preceding the commencement of an action under subsection (3) for grandparenting time, the grandparent provided an established custodial environment for the child as described in section 7, whether or not the grandparent had custody under a court order.
As is apparent by the language of the statute, there are very limited circumstances under which a grandparent can even petition the court for court-ordered visitation. However, the extensive procedures that a grandparent must complete do not end after he or she meets one of the above requirements. Even if the court finds that a grandparent meets one or more of the above requirements, the grandparent must also overcome the 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.”
Best Interest Factors and Grandparents
If a grandparent can overcome this presumption, he or she must still satisfy the “best interest” factor analysis. In deciding whether an order for grandparenting time serves the best interests of the child, the court will evaluate the following factors provided by MCL 722.27b(6):
(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.
(j) Any other factor relevant to the physical and psychological well-being of the child.
This “best interest” analysis requires that the court look to objective evidence that visitation would significantly benefit the child. Simply arguing that the grandparents have an inherent right to see and visit with their grandchildren will not suffice. Similarly, arguing that a grandchild has an inherent interest to visit with their grandparents will not work. Under such circumstances, a grandparent has no standing to make an argument on behalf of his or her grandchild. In essence, the United States Supreme Court’s decision in Troxel v. Granville, which severely restricted third-party rights to petition courts for visitation, prompted the Michigan legislature to carve out only a few circumstances that would allow a court to hear a grandparent visitation case. This means that the process that grandparents must go through to acquire visitation with their grandchildren is an exhausting one. It requires special attention, which only an experienced and tenacious Family Law attorney can provide.
Moreover, grandparent visitation is a sensitive subject because it usually arises as a result of family breakups or disagreements. How these cases proceed and are resolved is difficult for families, especially children. For that reason these cases require expertise, specificity, and detail oriented legal assistance. Our team of Oakland County Family Law Attorneys has undergone this process many times with a countless number of clients. Our lawyers understand the complexities of the law regarding grandparent visitation and know how to navigate our clients to successful solutions.
If you have any questions or concerns regarding grandparent visitation, contact us. We are available during office hours and have on-call attorneys after office hours. Our Oakland County office is conveniently located at 30300 Northwestern Highway. That’s located in the Gem Building near 13 Mile and Northwestern. Office hours are by appointment only.