Michigan’s newly enacted grandparentting time statute is 2004 Public Act 542, amending MCL 722.22 and 722.27b. A grandparent involved in such a dispute will be required to prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. Interestingly, the statute includes an automatic change in the standard of proof in the event its preponderance standard is determined to be unconstitutional.
MCL 722.22 is amended as follows:
As used in this act:
(a) “Agency” means a legally authorized public or private organization, or governmental unit or official, whether of this state or of another state or country, concerned in the welfare of minor children, including a licensed child placement agency.
(b) “Attorney” means, if appointed to represent a child under this act, an attorney serving as the child’s legal advocate in a traditional attorney-client relationship with the child, as governed by the Michigan rules of professional conduct. An attorney defined under this subdivision owes the same duties of undivided loyalty, confidentiality, and zealous representation of the child’s expressed wishes as the attorney would to an adult client.
(c) “Child” means minor child and children. Subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, for purposes of providing support, child includes a child and children who have reached 18years of age.
(d) “Grandparent” means a natural or adoptive parent of a child’s natural or adoptive parent.
(e) “Guardian ad litem” means an individual whom the court appoints to assist the court in determining the child’s best interests. A guardian ad litem does not need to be an attorney.
(f) “Lawyer-guardian ad litem” means an attorney appointed under section 4. A lawyer-guardian ad litem represents the child, and has the powers and duties, as set forth in section 4.
(g) “Parent” means the natural or adoptive parent of a child.
(h) “State disbursement unit” or “SDU” means the entity established in section 6 of the office of child support act, 1971 PA 174, MCL 400.236.
(i) “Third person” means an individual other than a parent.
MCL 722.27b is amended as follows:
(1) A child’s grandparent may seek a grandparenting time order under 1 or more of 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 PA305, 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.
(2) A court shall not permit a parent of a father who has never been married to the child’s mother to seek an order for grandparenting time under this section unless the father has completed an acknowledgment of parentage under the acknowledgment of parentage act, 1996 PA 305, MCL 722.1001 to 722.1013, an order of filiation has been entered under the paternity act, 1956 PA 205, MCL 722.711 to 722.730, or the father has been determined to be the father by a court of competent jurisdiction. The court shall not permit the parent of a putative father to seek an order for grandparenting time unless the putative father has provided substantial and regular support or care in accordance with the putative father’s ability to provide the support or care.
(3) A grandparent seeking a grandparenting time order shall commence an action for grandparenting time, as follows:
(a) If the circuit court has continuing jurisdiction over the child, the child’s grandparent shall seek a grandparenting time order by filing a motion with the circuit court in the county where the court has continuing jurisdiction.
(b) If the circuit court does not have continuing jurisdiction over the child, the child’s grandparent shall seek a grandparenting time order by filing a complaint in the circuit court for the county where the child resides.
(4) All of the following apply to an action for grandparenting time under subsection (3):
(a) The complaint or motion for grandparenting time filed under subsection (3) shall be accompanied by an affidavit setting forth facts supporting the requested order. The grandparent shall give notice of the filing to each person who has legal custody of, or an order for parenting time with, the child. A party having legal custody may file an opposing affidavit. A hearing shall be held by the court on its own motion or if a party requests a hearing. At the hearing, parties submitting affidavits shall be allowed an opportunity to be heard.
(b) In order to give deference to the decisions of fit parents, it is presumed in a proceeding under this subsection 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. To rebut the presumption created in this subdivision, a grandparent filing a complaint or motion under this section must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. If the grandparent does not overcome the presumption, the court shall dismiss the complaint or deny the motion.
(c) If a court of appellate jurisdiction determines in a final and nonappealable judgment that the burden of proof described in subdivision (b) is unconstitutional, a grandparent filing a complaint or motion under this section must prove by clear and convincing evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health to rebut the presumption created in subdivision (b).
(5) 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 filed under subsection (3). This subsection does not apply if 1 of the fit parents is a stepparent who adopted a child under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandparent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or whose parental rights have been terminated.
(6) If the court finds that a grandparent has met the standard for rebutting the presumption described in subsection(4), the court shall consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that it is in the best interests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the child by the grandparent by general or specific terms and conditions. In determining the best interests of the child under this subsection, the court shall consider all of the following:
(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.
(7) If the court has determined that a grandparent has met the standard for rebutting the presumption described in subsection (4), the court may refer that grandparent’s complaint or motion for grandparenting time filed under subsection (3) to domestic relations mediation as provided by supreme court rule. If the complaint or motion is referred to the friend of the court mediation service and no settlement is reached through friend of the court mediation within a reasonable time after the date of referral, the complaint or motion shall be heard by the court as provided in this section.
(8) A grandparent may not file more than once every 2 years, absent a showing of good cause, a complaint or motion under subsection (3) seeking a grandparenting time order. If the court finds there is good cause to allow a grandparent to file more than 1 complaint or motion under this section in a 2-year period, the court shall allow the filing and shall consider the complaint or motion. Upon motion of a person, the court may order reasonable attorney fees to the prevailing party.
(9) The court shall not enter an order prohibiting an individual who has legal custody of a child from changing the domicile of the child if the prohibition is primarily for the purpose of allowing a grandparent to exercise the rights conferred in a grandparenting time order entered under this section.
(10) A grandparenting time order entered under this section does not create parental rights in the individual or individuals to whom grandparenting time rights are granted. The entry of a grandparenting time order does not prevent a court of competent jurisdiction from acting upon the custody of the child, the parental rights of the child, or the adoption of the child.
(11) A court shall not modify or terminate a grandparenting time order entered under this section unless it finds by a preponderance of the evidence, on the basis of facts that have arisen since entry of the grandparenting time order or were unknown to the court at the time it entered that order, that a change has occurred in the circumstances of the child or his or her custodian and that a modification or termination of the existing order is necessary to avoid creating a substantial risk of harm to the mental, physical, or emotional health of the child. A court modifying or terminating a grandparenting time order under this subsection shall include specific findings of fact in its order in support of its decision.
(12) The court shall make a record of its analysis and findings under subsections (4), (6), (8), and (11), including the reasons for granting or denying a requested grandparenting time order.
(13) Except as otherwise provided in this subsection, adoption of a child or placement of a child for adoption under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, terminates the right of a grandparent to commence an action for grandparenting time with that child. Adoption of a child by a stepparent under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, does not terminate the right of a grandparent to commence an action for grandparenting time with that child.
This act is ordered to take immediate effect.
This sure seems backwards to me. A grandparent should have visitation rights UNLESS their involvement in the child’s life likely would cause harm?
If you take a kid to the symphony, s/he may be enriched (or perhaps bored) and they might turn out better for it. However if you don’t take them, the kid isn’t harmed, s/he is just not bettered as s/he might have been. Isn’t the same really true of involvement with grandparents? It routinely enhances a child’s experiences and understanding in life, it shares (hopefully) an additional loving relationship, and yet it doesn’t harm them not to have it. Otherwise we would have a pile of reject children because their grandparents died before they had an opportunity to know them. This law makes no sense to me.
Harm means that after the contact you are less than you were when you started. Harm does not mean that you didn’t grow as much as you could have with a broader experience. The following makes me think that a grandparent will never get visitation if the court actually applies the standard:
“To rebut the presumption created in this subdivision, a grandparent filing a complaint or motion under this section must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. If the grandparent does not overcome the presumption, the court shall dismiss the complaint or deny the motion.”
I hope I miss understand the law as written, because if I do understand it I would suggest it might better be called the denial of visitation rights act.
First,the wording on the burden of proof is not going to matter anyway. We (Louisiana) use “clear and convincing” but that greater standard only has teeth when it is an indivdual suing a company. For instance, our workers compensation statute uses “clear and convincing” as the burden for an injured worker to prove they can’t do ANY type of work. In those cases, it actually means something. In the domestic arena, however, trial judges have so much discretion under the “best interest” test that their evidentiary decisions are rarely criticized by the appellate courts. Even if a mistake is identified, the appellate court will point out that it wasn’t prejudicial to the outcome because there was sufficient evidence for the trial judge to rule the way they did.
I wonder how many legislators have handled child custody cases. This legislation may be well-intentioned, but it guarantees protracted litigation (with the children in the middle). While this Michigan statute is broader than ours, it still gives a grandparent whose child has been incarcerated the right to seek visitation. So after the “good” parent has finally proven their allegations against the ‘bad’ parent(ie., they are doing drugs, engaged in other illegal activity) they find themselves with a whole new fight on their hands against their former mother-in-law. Rest assured that the mother-in-law will already be hostile to the ‘good’ parent because of the proceedings that have come before and the bad things they have said about their little angel. Unfortunately, this visitation time then opens a forum for the grandparent to plant the idea in the child’s head that they should come live with grandma….
Finally, MCL 722.27b(2)”…unless the putative father has provided substantial and regular support or care in accordance with the putative father’s ability to provide the support or care.” smacks of gender discrimination. Could it apply to a paternal grandparent that has been raising the child since birth? What if they can’t get cooperation from their son?
While I do not like these laws they will certainly be good for business as the baby-boomers look for a second chance on raising (grand)children.
Pingback: innerstation