In 2003 the Michigan Supreme Court held the state's grandparent visitation statute to be unconstitutional and urged the state's legislature to redraft it. In response the legislature passed the Grandparent Visitation Bill, and on January 3, 2005, Michigan's governor signed it into law. The law gave grandparents standing to petition the court for visitation with their grandchildren in certain circumstances. Grandparents looking for visitation with their grandchildren or who want custody of their grandchildren should be aware of what rights the law grants them.
When Grandparents Have the Right to Seek Visitation in Court
Grandparents can petition the court for visitation in the following circumstances:
- If the child's parents are divorcing, separating or annulling their marriage, or have already done so
- If the child was born out-of-wedlock and the parents do not live together - in order to qualify under this provision, the child's father must have been declared the child's father legally and pay child support
- Someone other than the child's parent has legal custody of him or her, or the child does not live with his or her parents - this provision does not apply in the case where a step-parent has adopted the child
- The grandparent has taken care of the child within the previous year, whether or not there was a court order to do so
Procedure for Getting Visitation
If a grandparent falls into one of the above categories and believes that the child's guardian has wrongfully denied him or her visitation with the child, he or she may bring a motion for visitation and have a hearing on the matter.
The court will presume that a fit parent's decision to deny the grandparent visitation is in the child's best interests. At the hearing, the grandparent must overcome this presumption by showing by a preponderance of the evidence that the child will suffer mentally, emotionally or physically by not seeing the grandparent.
If two fit parents, not including a step-parent, both file an affidavit denying the grandparent's visitation request, the court will dismiss the motion without a hearing.
Deciding Visitation Time
If the grandparent shows the court that the child will suffer harm by not seeing him or her, the court must then decide how much visitation time is appropriate. The statute lists the factors the court must weigh when determining how much visitation time to allow a grandparent:
- The love, affection, and other emotional ties existing between the grandparent and the child
- 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
- 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 issue.
- Any other factor relevant to the physical and psychological well-being of the child
Petitioning for Custody
It is often difficult for grandparents to gain custody of their grandchildren from the court. The Supreme Court has said that people have a right to their children and the court will only award children to people other than the parents when the parents are held unfit - even if relatives are the ones seeking custody of the children. The most common circumstance for grandparents to obtain custody is when one or both parents die.
Arguments among adults about who has the right to see and care for a child they all love can be particularly virulent. If you are having issues with grandparent visitation or custody, contact an experienced family law attorney who can advise you of your rights.