Grandparenting Time: Recent Changes in the Law

In 2003, the Michigan Supreme Court's decision in DeRose v DeRose substantially modified the law concerning a grandparent's right to obtain court-ordered visitation time. 469 Mich 320 (2003). As a result, courts now give fit parents much greater deference when those parents choose to deny grandparenting time.

Prior to the 2003 case, MCL 722.27b, a provision of the Child Custody Act of 1970, provided that a Court shall enter a grandparenting time order upon a finding that the order is in the child's best interests. This determination could be made with or without a hearing, as long as the Court determined that the child's best interests would be served by issuing the order. However, the Court in DeRose found that statute unconstitutional. That Court noted that parents have a "'fundamental right' to raise their children." 469 Mich at 332. That right includes the power to "make decisions for children, and such decisions must be accorded 'deference' or 'weight.'" Id. The lack of deference to the decisions of fit parents in MCL 722.27b made it unconstitutional.

Thus, DeRose set a new standard of deference for the decisions of fit parents, and MCL 722.27b has been amended to reflect that standard. Now, for a grandparent to seek grandparenting time, one or more of the following circumstances must exist:

1. An action for divorce, separate maintenance, or annulment involving the child's parents is pending before the Court or has been finalized.

2. The child's parent who is a child of the grandparents is deceased.

3. The child's parents never married, do not live together, and paternity is established.

4. The legal custody of the child was given to a person other than the child's parent, or the child does not reside in the home of a parent.

5. The grandparent provided a custodial environment for the child in the year before commencement of the action, whether or not the grandparent was the legal custodian.

MCL 722.27b.

In addition, Courts now presume 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." MCL 722.27b. To obtain an order for grandparenting time, the grandparent must rebut that presumption by proving, by a preponderance of the evidence, that denial of the order does in fact create a risk of harm to the child. If a grandparent fails to rebut the presumption, then the Court will not issue the order. The Court also will refuse to issue the order if two fit parents sign an affidavit in opposition to it.

If the grandparent successfully rebuts the presumption and two fit parents did not oppose the order in an affidavit, then the Court will consider the best interests of the child to determine whether the grandparenting time order should be entered. The Court will consider:

1. The love, affection, and emotional ties existing between the grandparent and the child.

2. The length and quality of the prior relationship between the child and the grandparent, the grandparent's role, and the existing emotional ties of the child to the grandparent.

3. The grandparent's moral fitness.

4. The grandparent's mental and physical health.

5. The child's reasonable preference, if the child is old enough to express a preference.

6. The effect on the child of hostility between the grandparent and the parent of the child.

7. The willingness of the grandparent, except in cases of abuse or neglect, to encourage a close relationship between the child and the parents.

8. Any history of abuse or neglect of any child by the grandparent.

9. Whether the parent's decision to deny grandparenting time is related to the child's well-being or is for some other unrelated reason.

10. Any other factor relevant to the physical and psychological well-being of the child.

MCL 722.27b.

If consideration of the above factors indicates that it is in the child's best interest to grant a visitation order, the Court then may grant the order itself or refer the grandparent's complaint or motion to domestic relations mediation for resolution.

These recent changes to MCL 722.27b are significant because they demonstrate an explicit presumption of deference for the decisions of fit parents. As a result, it likely will become more difficult for grandparents to obtain visitation orders without the parents' consent.