Grandparenting Time

Because a relationship between a grandparent and a grandchild provides the child with intangible benefits not available in other relationships, the Legislature and Courts have implemented procedures to where the grandparents can seek visitation with their grandchildren. Every case is decided upon its own facts and circumstances.

In Michigan, Grandparents are afforded statutory grand parenting time under certain circumstances where the court determines that grand parenting time is in the best interests of the child. (MCLA 722.27b) Michigan Courts have stated that grandparents may only seek grand parenting time if a child custody dispute is pending before the court. Michigan defines a child custody dispute as the court proceeding in which the marriage of the child's parents is declared invalid or dissolved. In these cases, the grandparent may intervene and file a motion for an order to show cause with the court before which the case is pending. A grandparent can file a motion or action for grand parenting time when the case is not pending when the child's parent has deceased. This complaint must be filed at the circuit court in the county in which the grandchild resides. An affidavit must accompany the complaint or motion setting forth the facts supporting the request, if the motion does not set forth facts in support. If the party requests a hearing or the court holds one, all parties who have submitted affidavits (including parties with legal custody) must be allowed the opportunity to be heard. The court may enter an order providing for grand parenting time, if it is within the best interests of the child and may resolve conflicts that arise from grand parenting time.

A grandparent is not allowed to enter a motion for grand parenting time, if the child is adopted by someone other than a stepparent.

The grand parenting time statute does not allow grand parenting time for parents of the putitive father, unless that putitive father has acknowledged the paternity in writing. A grand parenting time Order does not create parental rights in grandparents or prevent a court from making decisions regarding custody, adoption, or parental rights. The court can modify or end grand parenting time if a change is within the child's best interests.

It is often asked if a grandparent may seek grand parenting time if the parents are not married? The Michigan Courts have held pursuant to the statute governing grandparenting time MCLA 722.27b, that a child custody dispute is pending within the meaning of the statute only under the circumstances enunciated in the statute. It is found that this statute does not involve a fundamental right, does not create a disparaged classification based on illegitimacy, and does not have a disparate effect on a disadvantaged class. Grandparents of legitimate children could also be denied standing if the parents were married and not divorced or separated.

It is still unknown as of June 2000 what the effect of the United States Supreme Court ruling Troxel v Granville decided on June 5, 2000 docket number 99-138 will be, if any, on a grandparental parenting time action in Michigan.

As of April 1, 2002, we now know what the answer to that question will be. In a recent case by the Michigan Court of Appeals, the Court held that the Michigan Grandparenting Time Statute is unconstitutional. In DeRose v DeRose, 2002 WL 100683, the Court of Appeals stated that it is not proper for the Trial Judge to order grandparenting time simply whenever the Judge deems it to be the best interest of the child. The Court of Appeals also stated that the lack of standards in this 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 left the decision to the Trial Judge and that was unconstitutional. With this decision, it tends to prove that Grandparents may not be awarded grandparenting time.

In DeRose, the Michigan Court of Appeals quotes Troxel, v Granville, 530 U.S. 57 (2000) and states that "a series of decisions by the United States Supreme Court over the course of the 20th century which recognized 'the fundamental right of parents to make decisions concerning the care, custody, and control of their children". As long as a parent adequately cares for his or her children there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. Reno v Flores, 507 U.S. 292 (1993). Therefore, it seems as the Court of Appeals is following this reasoning and allowing the parents to decide what is in their children's best interest.

But, with all this in mind, it is still uncertain to where this case may lead us. There is an appeal in process, where the Michigan Supreme Court may overturn this decision. The Michigan Legislature is working on drafting a Statute that will fit into the "constitutional" category as defined by the Court of Appeals.