Grand Parents Rights to Their Grand Children
There is no statutory authority in Michigan that gives a third party standing to seek custody if that party does not possess a substantive right to custody and there is no custody dispute already pending before the court. In this respect, grandparents have no greater claim to custody than any other third party. Grandparents and other third parties do not attain a legal right to custody on the basis of the fact that a child has resided with them.
However, if there is a child custody dispute before the court, including in a divorce proceeding between the parents, the court has authority under the Child Custody to award custody to a third party, including a grandparent, not based on the third party’s legal right to the child but based on the court’s determination of the child’s “best interests.”
Be aware grand parents, however, that Michigan courts have decided that the parental presumption overrides any established custodial environment (ECE) that minor children may have established with third parties, including grandparents. The Child Custody Act creates a presumption that the best interests of the child are served by awarding custody to a parent. In every custody dispute involving the natural parent of a child and a third-person custodian, a strong presumption exists that parental custody serves the child’s best interests.
Michigan courts have held that in a custody dispute between a child’s mother and third parties who had an ECE, the parental presumption applied to the mother, regardless of whether she was a fit parent.
Children do have a right to child support from their natural or adoptive parents. Therefore, if a third party, including a grandparent, actually has custody of a minor child, that party may petition the court to require both of the child’s parents to pay support. The amount of support is determined by formulas set forth under the law. The trial court has the authority to order the parent or parents to pay child support to those caring for the children, including grandparents, even if the parental rights of a parent or parents have been involuntarily terminated under the Juvenile Code. Some of the factors these formulas consider, however, include whether the parents reside in the same household, the net income of each parent, and the number of children living with the custodian.
By court order, each parent may then be required to provide payment to the county Friend of the Court’s office for subsequent transmission to the custodian of the children. The amount of support, however, may deviate from the formula when practical problems arise, such as when one or both parents are incarcerated, unemployed, or mentally or physically ill and are unable to provide for themselves. In fact, in some of these instances, no child support may be ordered.
In some cases, grandparents are left with grandchildren from their adult children who are incarcerated or incapacitated or disabled due to mental or substance abuse problems. While these grandparents may be initially willing to serve as caregivers, they may truly wish to restore custody to their own child or to the other biological parent. If their own child or the other biological parent desires to obtain custody of the grandchildren and the attorney for the grandparents is aware of this, the attorney should provide the names of other attorneys with expertise in custody litigation and urge the grandparents to advise the parent in question to obtain individual counsel for that purpose.
If the grandparents wish to retain custody rather than to return the minor children to a natural parent, they should be aware that caselaw has shifted the burden in these custody disputes. Before 2001, the Michigan courts recognized that an ECE could be created between a minor child and a third party. If the third party had standing to petition for custody, the third party then had the benefit of a presumption in favor of maintaining the ECE, absent clear and convincing evidence. There is also a presumption in Michigan that custody with a natural parent is favored absent clear and convincing evidence. When these presumptions existed in the same custody dispute, the natural parent formerly had the burden of persuasion to change custody by a preponderance of the evidence. In 2001, however, the Michigan courts held that these presumptions should not be on an equal footing. Instead, the courts held that, because there is a fundamental constitutional right of a natural parent to raise his or her children, the burden is on a third party disputing custody to demonstrate by clear and convincing evidence that it is in the children’s best interests for custody to be with the third party rather than with the natural parent.
The Michigan Supreme Court struck down Michigan’s grandparent visitation statute as constitutionally invalid. Subsequently, the Michigan Court of Appeals deemed all existing grandparenting time orders void ab initio.
As a result of these decisions, the legislature amended the grandparent visitation statute. The amended statute makes several substantial changes to the prior law. The first change clarifies the standing provisions for grandparents. Specifically, if a grandparent has been denied time with a child by a parent, the grandparent may seek relief only under one or more of the following circumstances:
A divorce, separate maintenance, or annulment action involving the child’s parents is pending or completed.
The child’s parent, who is the child of the grandparent seeking time, is deceased.
The child was born out-of-wedlock, the child’s parents are not living together, and the child’s father has formally acknowledged paternity or has been adjudicated the child’s legal father. Further, in the case of a putative father, a grandparent may not seek relief under this statute unless the putative father has provided substantial and regular support or care in accordance with his ability to do so.
Legal custody has been given to someone other than the child’s parent, or the child is placed outside of the home of the parent.
The grandparent has provided an ECE for the child in the year preceding the commencement of an action under this statute.
The most significant changes to the law affectsthe burden on the moving party, the grandparent, to move forward on a request for relief. The statute now requires a court deciding a grandparent’s petition for visitation to presume that a fit parent’s decision to deny grandparenting time does not create a substantial risk of mental, physical, or emotional harm to the child; and the grandparent bears the burden of rebutting that presumption by a preponderance of the evidence. However, if two fit parents both oppose visitation and sign an affidavit to that effect, their joint opposition effectively creates an irrebuttable presumption that denial of grandparenting time will not create a substantial risk of harm to the child and the grandparents’ petition must be dismissed. Note that this subsection does not apply if one of the fit parents is a stepparent who adopted a child under the Michigan adoption code and the grandparent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or whose parental rights have been terminated.
As the law now stands, if the grandparent cannot meet his or her burden to prove that not having grandparenting time will create a substantial risk of harm to the child by a preponderance of the evidence, the court must dismiss the complaint or deny the motion. If, however, the grandparent rebuts the presumption, the court must consider whether it is in the best interests of the child to award grandparenting time. The best interests analysis under MCL 722.27b is not identical to the analysis required under the Child Custody Act, MCL 722.23. Rather, the court must consider all of the following factors:
(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 grandparent, 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 reason.
(j) Any other factor relevant to the physical and psychological well-being of the child.
If a court determines that it is in the best interests of the child to award grandparenting time, the court must enter an order providing reasonable time with general or specific terms and conditions. Further, the court is required to make a record of its analysis and findings, under the applicable sections of the statute, including its reasons for granting or denying grandparenting time.
Two other subsections of the grandparenting time statute are worthy of notice. The statute provides that a grandparent may not file a complaint or motion seeking a grandparenting time order more than once every two years, absent a showing of good cause. The court may order reasonable attorney fees to the prevailing party. Also, the court “shall not enter an order prohibiting an individual who has legal custody of a child from changing the domicile of the child if the prohibition is primarily for the purpose of allowing a grandparent to exercise the rights conferred in a grandparenting time order entered under this section.”
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