Grandparenting Time: Burden of Proof Challenged in Gleicher's Concurring Opinion

An unpublished decision from the Michigan Court of Appeals ("COA") [Hollis v Miller, Docket No.  306090, decided November 8, 2012] demonstrates the difficulties a grandparent faces in a grandparent visitation action once a parent cuts off contact with the child. In Hollis, the defendant-father and plaintiff's daughter, parents of the child at issue, were never married. The father has had sole legal and physical custody of the child since the child was about two years old. A no-contact order prevents the mother (grandmother's daughter) from seeing the child. However, until late 2009 or early 2010, the mother's family, including the plaintiff grandmother had had subtantial contact with the child. Then the father began denying plaintiff visitation.

Michigan’s grandparenting-time statute, MCL 722.27b, creates a presumption that a fit parent’s decision to deny grandparenting time “does not, in and of itself, create a substantial risk of harm.”

In order to obtain an order for grandparenting time, the grandparent may meet his or her burden of rebutting that presumption by showing by a preponderance of the evidence that there is a substantial risk of harm in denying grandparenting time, according to the statute. MCL 722.27b(4)(b)

However, as Hollis shows, once the link between the grandparent and the child is broken, it is very difficult, if not impossible, to obtain and present evidence that the child is at risk because of the denial of contact between the grandparent and the child, even under the preponderance of evidence standard.

In Hollis, the evidence presented by the grandparent showed a close relationship prior to the denial and even showed the father's recognition and appreciation of the grandmother's involvement with the child. However, the grandmother was not able to show in any way that the child was at substantial risk of harm after the father cut off contact. The father presented evidence from the child's therapist and a doctor (presumably a pediatrician) that the lack of contact was not detrimental to the child. The trial court ordered visitation. A stay was requested and denied. The father appealed.

The COA held that because the grandmother failed to present any evidence supporting a conclusion that the lack of grandparent visitation raised a substantial risk of harm to the child, the trial court's finding that there was a substantial risk of harm was against the great weight of the evidence. Thus, the COA vacated the trial court's order granting grandparenting time to plaintiff under MCL 722.27b(4) and remanded the case. An interesting aspect of this case is that there are three opinions: the majority opinion (Shapiro and Gleicher), a concurring opinion (Gleicher), and a dissenting opinion (Krause).

The majority opinion, authored by Douglas B. Shapiro and Elizabeth L. Gleicher, reversed the trial court on the ground that the grandparent failed to overcome the statutory presumption that denial of grandparenting time by a fit parent “does not, in and of itself, create a substantial risk of harm.”.

Gleicher, J. wrote separately, in a concurring opinion, to express her belief that Michigan's grandparenting time statute is unconstitutional where, as here, the burden of proof for the grandparent is a mere preponderance of the evidence (i.e., more likely than not) and also to express her belief that an earlier COA decision, Keenan v Dawson, erroneously adopted the preponderance of evidence standard set out in MCL 722.27b(4)(b), in derogation of constitutionally protected liberty interests of parents to control the care and custody of their children.

Gleicher expressed her belief that a grandparent must establish by clear and convincing evidence, rather than by a preponderance of the evidence, as approved in Keenan v Dawson, that denial of visitation substantially risks harm to the child to overcome the presumption.

Gleicher's historical analysis of the high level of protection of parental rights sets the stage for her conclusion, for which she also finds support in Hunter v Hunter, a 2009 Michigan Supreme Court case holding that a clear and convincing evidence standard is required whenever analyzing and deciding the rights of third parties in custodial rights to children. In that regard, Gleicher wrote:

The Supreme Court’s decision in Hunter v Hunter, 484 Mich 247; 771 NW2d 694 (2009), reinforces my analysis. In Hunter, the Supreme Court held that when a court hears a custody dispute between a child’s natural parents and a third party with whom the child has an established custodial environment, it must determine the child’s best interests by applying the clear and convincing evidence standard. Id. at 265. The third parties who sought custody in Hunter enjoyed a long-term, settled relationship with the involved children. Undoubtedly, the custodians and the children shared a strong emotional bond. Nevertheless, to rebut the presumption that the children’s best interests would be served by parental custody, the Supreme Court required the custodians to present clear and convincing evidence. I would hold that because of the identical importance of the constitutionally protected rights at issue in a grandparent visitation action, the same standard of proof should apply.

Krause, J. dissented, and would have affirmed the trial court based upon the holding in Pickering v Pickering, 268 Mich App 1, 5 (2005). “Orders concerning [grand]parenting time must be
affirmed on appeal unless the trial court’s findings were against the great weight of the evidence,
the court committed palpable abuse of discretion, or the court made a clear legal error on a major
issue.” Note that Pickering was decided four years prior to Hunter and does not consider the constitutional implications.

 Michigan's grandparenting time statute is MCL 722.27b. Download Mcl-722-27b

The majority opinion: Download Hollis v Miller Per Curiam

Gleicher, J concurring opinion: Download Hollis v Miller Concurring Gleicher

The dissenting opinion: Download Hollis v Miller Dissent Krause

Keenan v Dawson: Download Keenan v Dawson

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