On June 13, 2017, the Michigan Court of appeals issued a published opinion on Grandparent time. In the case of Geering v. King et. al., Mich. App. No. 335794, the trial court made a determination that the biological parents were unfit and that grandparent time was in the children’s best interest notwithstanding the biological parent’s objections. The Michigan Court of Appeals reversed.
The parents of the minor children had four children and divorced in 2011. Thereafter, the parents continued to fight relentlessly over the custody of the minor children with multiple hearings over the course of a few years.
The maternal grandparents complained that they were being excluded from their grandchildren lives and sought parenting time, as they were only allowed to see their grandchildren on a sporadic basis. Despite their apparent hatred for one another and inability to agree on virtually every custody decision, the biological parents joined in objecting to the grandparent time request.
Grandparent time and the Constitutional right to parent
The Michigan Court of Appeals recognized that parents have a constitutionally protected right to make decisions about the care, custody, and management of their children, citing the Michigan Supreme Court in the case of In Re: Sanders, 495 Mich. 394 (2014).
However, the constitutionally protected right is not absolute. If the state has a legitimate interest in protecting the moral, emotional, mental and physical welfare of the minor.
Grandparent time and “fit parent” contingency
The U.S. Constitution recognizes a presumption that a fit parent acts in the best interest of their children. The United States Supreme Court in Troxel v. Granville, 530 US 57 (2000), defined a fit parent as a parent who “adequately cares for his or her children.” which led to the determination that Michigan’s old grandparent time statute was unconstitutional. (See: DeRose v. DeRose, 469 Mich. 320 (2003)).
The current Michigan grandparent time statute
The new Michigan law regarding grandparent time is found in MCL 722.27b. In simple terms, grandparent time is awarded if denying the time creates a substantial risk of harm to the child’s mental, physical or emotional health. (See. MCL 722.27b(4)(b).)
In awarding grandparent time, the trial court in the Geering v. King case determined that the biological parents were not fit and that denying the time would create a substantial risk of harm. The Michigan Court of Appeals reversed relying in part on the case of Brinkley v. Brinkley, 277 Mich. App 23 (2007) which provided “. . . if two fit parents . . . both oppose visitation, their joint opposition effectively creates an irrebuttable presumption that denial of grandparent time will not create a substantial risk of harm.
The Michigan Court of Appeals reversed the trial court’s award of grandparent time
In reversing the award of grandparent time, the Michigan Court of Appeals in the Geering v. King case concluded by stating:
“Our conclusion does not necessarily mean that we agree with the [biological parents] purported decision to largely exclude [the grandparents] from the children’s lives. . . However, parents have a constitutionally protected right to raise their children as they see fit. . .”
Grandparent time moving forward
The best protection to ensure grandparent time is to get along with one or both parents as a biological parents right to parent can make it very difficult for a court to award grandparent time over the objection of a parent.
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By: Daniel Findling