By Shannon N. Scheloske and Barbara P. Andruccioli
Grandparents’ visitation rights have been unclear for years. However, on January 3, 2005, Governor Granholm signed a new law into effect that defines how much access grandparents may have to their grandchildren.
Under the new law, Michigan grandparents have the ability to seek visitation every two years in the following circumstances:
- divorce, annulment or separation is pending or completed between the child’s parents;
- when the child’s parent (on said grandparent’s side) is deceased;
- when the parents have never been married, are not residing in the same home and paternity has been established (for grandparents on the paternal side, no order can be sought if the father has not provided regular support for the child);
- when custody of the child has been given to a person other than the parent, or the child does not live with either parent; or the grandparents have had custody of the child for a year prior to seeking visitation.
- In all of these cases, adoption by anyone other than a stepparent terminates the rights of grandparents to seek a visitation order. Adoption by a stepparent does not terminate grandparents’ ability to seek visitation with their grandchildren.
An action seeking visitation is brought either by motion or complaint in the circuit court and must be accompanied by an affidavit. Any party having legal custody may file an opposing affidavit. If both parents with legal custody sign affidavits indicating that they are opposing grandparenting time, the court must dismiss the grandparents’ case. An exception exists when a stepparent is involved and the natural parent is deceased or had his or her parental rights terminated.
Included in the new law is a provision that provides that a presumption exists 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. If the grandparents filing for visitation are not able to rebut this presumption (by a preponderance of the evidence standard, which can be described as 51% or better), their case will be dismissed.
If the grandparents rebut the presumption discussed above, the court may either refer the matter to mediation, or hold a hearing. At this hearing, the court will determine whether or not it is in the best interests of the child to have visitation with the grandparents. In making this determination, there are several factors that the court must consider. These factors are:
- the love, affection, and other emotional ties of the child to the grandparent;
- the length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent;
- the grandparent’s moral fitness;
- the grandparent’s mental and physical health;
- the child's reasonable preference, if the court considers the child to be of sufficient age to express a preference;
- the effect on the child of hostility between the grandparent and the parent of the child;
- 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;
- any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent;
- 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 reason; and
- any other factor relevant to the physical and psychological well-being of the child.
If, after reviewing these factors, the court determines that, by a preponderance of the evidence, that it is in the best interests of the child to enter a grandparenting time order, an order will be entered providing the grandparents reasonable grandparenting time.
A grandparenting time order entered under this act cannot be changed unless it can be shown (again using the preponderance of the evidence standard) that there has been a change in circumstances based on new facts that have arisen since the time of the order. However, a grandparenting time order does not confer parental rights on grandparents, does not prevent the court from determining custody, parental rights or adoption of the child, and does not prevent the custodial parent from changing the domicile of the child.
If you have any questions about Michigan’s new grandparent visitation law, please contact either Ms. Scheloske at 248.619.2599 or click here to send an email or Ms. Andruccioli at 248.740.5683 or click here to send an email.
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