The Michigan Court of Appeals is publishing Johnson v. White (Case Nos. 241414; 241992; March 23, 2004). The court held that the DeRose decision finding Michigan’s grandparenting time statute unconstitutional will be given full retroactive effect and that grandparenting time orders are void ab
initio.
Smolenski writes (excerpt):
Turning to the case before us, we find that the DeRose decision clearly established a new principle of law by addressing for the first time the constitutionality of MCL 722.27b and declaring the statute unconstitutional. See Hall, supra at 394-395; Sturak, supra at 561-562. We also find that the purpose of the DeRose decision would best be served by giving it full retroactive application. There is no doubt that grandparents play an important role in a child’s life. But grandparents do not have a fundamental right to make decisions for their grandchild. Additionally, despite plaintiffs’ reliance on the statute, and that of others similarly situated, prospective application only of DeRose would fail to give this statement its proper import. It was precisely “the lack of any standards in the Michigan statute beyond ‘the best interests of the child,’ and specifically the failure of the statute to afford any deference to the custodial parent’s decision” that was fatal to MCL 722.27b’s viability. DeRose, supra at 394-395.
Moreover, unlike the child support and restitution concerns in the above cases, no such financial concerns are involved. The orders entered pursuant to MCL 722.27b only involve grandparents’ visitation rights. In light of our Supreme Court’s affirmance of the DeRose decision, we do not face the potential of creating additional litigation that was present in the Pohutski, Hall, and Sturak cases. Therefore, the effect of DeRose being given full retroactive application is only to terminate those visitation rights. And so we hold that the DeRose decision should be applied retroactively. Accordingly, we vacate the trial court’s January 10, 2001 order granting plaintiffs grandparenting time as it is void ab initio.
As the DeRose Court recognized, it is presumably possible for a constitutional grandparent visitation statute to be written. In the event that the Legislature addresses the constitutional deficiencies identified in DeRose, plaintiffs and others similarly situated would be entitled to petition the court anew for visitation rights. However, in the meantime, we hold that all orders based on and entered since the enactment of MCL 722.27b, effective December 17, 1982, are void ab initio and thus, are no longer to be given legal effect.