Michigan's laws regarding grandparent visitation are lengthy and detailed. The statutes as they now stand were passed in 2005 after the previous law was found to be unconstitutional. Following the U.S. Supreme Court case of Troxel v. Granville (2000), the Michigan Supreme Court made the finding of unconstitutionality. In deciding the 2003 case of Derose v. Derose, the court found that the law as written did not give sufficient weight to the desires of the parent.
The 2005 version of the law sought to remedy that flaw.
Requesting Grandparenting Time
According to the new statutes, courts may award visitation, called "grandparenting time," to grandparents if the parents of the grandchild are divorced, separated or have had their marriage annulled, or if such an action is pending. In addition, grandparents may receive visitation if a parent is deceased.
A grandparent may also seek visitation or if the child's parents are unmarried and do not live together but paternity has been established. In the case of unmarried parents, paternal grandparents may request visitation only if the father has provided "substantial and regular support or care," in accordance with his ability to do so.
In addition, grandparents may seek visitation if the child is living somewhere other than with parents or if custody of the child has been given to a third party. These provisions do not apply, however, if the child has been adopted.
Adoption terminates visitation rights unless the adopting party is a stepparent and the grandparent seeking visitation is the parent of a deceased parent.
The law also allows grandparents who have provided an "established custodial environment" for a grandchild to file for grandparenting time. An "established custodial environment" is defined as follows: "The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." In other words, grandparents who have taken on a parental role may file for visitation.
The grandparent must file suit, however, within one year of the time he or she provided the "established custodial environment."
Deferring to Parental Wishes
To bring the state into undeniable compliance with Troxel v. Granville, the law includes the harm standard. Grandparents must prove that a denial of visitation would result in "a substantial risk of harm to the child's mental, physical, or emotional health." The harm standard is a notoriously difficult standard to meet.
In order to give even more weight to parental wishes, the law provides that if "two fit parents" file an affidavit opposing grandparenting time, the court may not award visitation. This provision was upheld in the 2007 case of Brinkley v. Brinkley. In that case the court did point out that this provision does not apply in four situations:
- When one of the parents is deceased, and the surviving parent is not the grandparents' child
- When the parents "never formed, or no longer have, an intact marital or domestic relationship"
- Where legal custody of the child has been given to someone other than the parents, or the child has been placed in someone else's home
- Where the grandparents provided the aforementioned "established custodial environment" for the child during the previous year.
If a grandparent makes it past these the harm standard and is not faced with an affidavit signed by two parents, he or she must still prove that grandparenting time is in the best interests of the child.
Determining Best Interest
In DeRose v. DeRose, the court also found that another weakness of the earlier law was a lack of provisions for determining the best interests of the child. The 2005 law thus provides a list of items to be considered in making that determination. These include the following:
- The emotional ties between grandparent and grandchild
- The "length and quality" of the prior relationship between grandparent and grandchild and any roles played by the grandparent
- The grandparent's "moral fitness"
- The grandparent's physical and mental health
- The child's preference, if found by the court to be old enough to express a preference
- The effect on the child of any hostility existing between grandparent and parent
- The willingness of the grandparent to support the parent-child relationship, in the absence of abuse or neglect by the parent
- Any history of abuse of any child by the grandparent
- Whether the parental decision to withhold contact was made for the well-being of the child or for some other reason
- Any other factors affecting the child's well-being, both physical and psychological.
The following Michigan cases may be of interest to grandparents seeking visitation:
- Keenan v. Dawson, Michigan Court of Appeals, 2007. In this case grandparents sought visitation with their grandchild after the death of their daughter, who was the mother of the child in question. Although there had been some family conflict while the mother was alive, the court agreed with the lower court's decision that the child would suffer harm if denied information about his dead mother and that the grandparents would be his best source of information and insights.
- Porter v. Hill, Michigan Supreme Court, 2014. In this case a young father had his parental rights terminated, and his parents subsequently sued for grandparenting time. The court ruled that the father still qualified as the natural or biological parent even though he had lost his parental rights. Thus the grandparents had standing to seek visitation.
For further information, see Michigan law, Section 722.27b.