After much controversy and discussion, on January 3, 2005, the Grandparent Visitation Bill was signed into law by Michigan's Governor, after having been unanimously passed by the Michigan House and Senate. The law creates new rights for grandparents following the Michigan Supreme Court Decision in Derose vs. Derose, decided July 31, 2003, which held Michigan's old law to be unconstitutional.
Because the Michigan Supreme Court asked the Michigan Legislature to redraft the Michigan Law in order to make the law constitutional to provide grandparents and grandchildren to have access to see each other under certain circumstances, the legislation has developed the law set forth below. However, the new law does provide for safeguards as required by the Michigan Supreme Court, which protect parental rights as guaranteed by the Constitution. When setting in place standards for grandparents who have been denied seeing their grandchildren the new law gives grandparents an opportunity to go to court to show why they should have a right to see their grandchildren, if they believe their request is unreasonably denied.
The new law provides that in certain circumstances grandparents can request relief from the court to see their grandchildren if they have been denied by the parent. These circumstances are:
1. If there is a divorce, separate maintenance, or annulment action pending between the child's parents, or such an action has already been finalized.
2. The grandchild was born out-of-wedlock and the parents are not living together. However, this only applied to grandparents of the alleged father if he has been declared legally to be the father of the child by a proper court proceeding and the child's father provides child support in accordance with his ability to provide support or care for his child.
3. Legal custody of the child has been given to a person other than the child's parent or the child does not live in the parent's home. This is other than a child who has been adopted by a person who is not the child's step-parent.
4. A grandparent has taken care of a grandchild during the year before they request visitation, whether or not they have done so by a valid court order.
If a grandparent falls into any of the above categories and has been denied visitation, they have a right to bring an action in the family court that has heard any prior action, such as a divorce or paternity action. If there has been no prior action filed, then the new action would have to be brought in the circuit court in the county where the grandchild resides. However, there is a notice requirement to anyone with legal custody or an order for parenting time of the child, they must be given notice of the grandparent visitation request or motion.
On filing a motion for the grandparent visitation, a hearing will be granted on that request in the circuit court/family division assigned to the case. At that hearing, the court will presume that a "fit" parent's decision to deny a grandparent visitation request does not create harm to the child, meaning the child's mental, physical or emotional health. The grandparent who is requesting visitation has the burden to show the court by a preponderance of evidence, which is 51% or more, that the parent's decision to deny visitation to the grandparent does indeed create harm, either mentally, physically or emotionally, to the health of the minor child. If the grandparent does not prove to the court by a preponderance of the proof, the court will dismiss the grandparent's petition. However, please note that if the court is convinced that the denial of visitation has a potential to create a risk of harm either to the physical, mental or emotional health of the child, the court will follow a set of factors in determining what amount of grandparent visitation would be in the child's best interests.
The court looks at the amount and duration of grandparenting time or visitation that the court will allow. If the court believes the grandparent has overcome the presumption of a fit parent, the court will look to the following set of factors and consider all of them in making its decision as to how much time the grandparent should be with the minor child:
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 parent, 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 issue.
j. Any other factor relevant to the physical and psychological well-being of the child.
If the court does determine that the grandparent has met the standard for rebutting the presumption, the court may refer the grandparent's request for visitation to mediation or to the Friend of the Court to attempt to resolve any dispute. If it chooses not to do so, the court will decide the issue itself.
The Grandparent Visitation Law does set forth a provision that if two fit parents, which does not include a step-parent, sign an affidavit opposing the grandparent visitation request, then the court shall dismiss a grandparent's request for such visitation.
The Legislature put a safeguard into the law in the event that a challenge to this law is ever made in regard to the standard of proof to which the Michigan Legislature has set forth, which is currently the preponderance of evidence. If this is ever appealed into the appellate courts, and the Michigan Supreme Court later determines that the burden of proof should be made greater than preponderance of the evidence, such as a clear and convincing evidence standard, then the statute would automatically revert from the preponderance of the evidence to a clear and convincing evidence standard. The legislation intentionally put this into the body of the law in order to make sure that the Michigan law will never be ruled unconstitutional again, and that grandparents will always be able to maintain their right to see their children, even if the burden of proof is changed to a higher standard.
The law does set forth that any reasonable attorney fees to the prevailing party in any grandparent visitation request may be granted at the discretion of the court for either the parent or the grandparent, after the hearing.
