In Keenan v Dawson, Plaintiffs sought an order
granting them grandparenting time after their daughter was murdered and their
former son-in-law cut off all contact between the grandparents and a
20-month-old child. At the trial, both the father and the grandparents presented
expert testimony concerning the child’s need to have contact with his
grandparents. The trial court found that the father was a fit parent based upon
testimony from a psychologist with whom Mr. Dawson had had a lengthy
relationship, despite the fact that the father had attempted suicide prior to
the second day of hearing and was thus unable to testify. Finding the father a fit parent required the trial
court to give deference to his decision not to provide contact with the
grandparents. Therefore, the statutory presumption—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—was applied. The burden of proof
required to rebut the presumption required the grandparents to prove by a
preponderance of the evidence that the parent's decision to deny grandparenting
time creates a substantial risk of harm to the child's mental, physical, or
emotional health. See MCL
722.27b.
The trial court decided that the Keenans had proven
by a preponderance of the evidence that the denial of grandparent visitation
would create a substantial risk of harm to the son's mental, physical and
emotional health, and so it granted visitation. On appeal, Dawson argued that the provisions of the
Child Custody Act that required the grandparents to rebut the presumption by a
mere preponderance of the evidence violated the constitution both facially and
as applied. Because Dawson had not argued in the trial court that the statue is
facially unconstitutional, the court of appeals held that the issue was not
preserved for appeal. The court of appeals held that as applied, the
statutory presumption in favor of a fit parent's decision regarding grandparent
visitation, subject to rebuttal by a preponderance of the evidence, does not
violate the parent's constitutional interest in his child. What convinced the
court of appeals to uphold the trial court's decision was the substance of the
expert testimony offered at the trial. The court of appeals held that testimony
supported the conclusion that the denial of contact between the defendant's son
and his grandparents, given the young age of the child at the time of his
mother's death and his consequent inability to remember his mother, would cause
substantial harm to the child. Under the specific facts of this case, the court
of appeals held that the application of the statutory standard for rebuttal of
the presumption was not unconstitutional, and that the trial court properly
granted visitation to the plaintiffs. This decision is to be published. The specific facts
of the case, however, are unusual enough to limit the application of the
decision. Practice pointers to take away from this appellate decision are: 1) Think
through your trial strategy in a grandparenting case and be certain to assert
your constitutional challenges—that the statute is unconstitutional on its face
and that it is unconstitutional as applied—at the trial court level in order to
preserve them for appeal. 2) From
the perspective of the grandparents, consider on appeal (as the court of appeals
implied) a challenge to the trial court’s finding that the parent is a fit
parent and argue that the presumption that there is no substantial risk of harm
to the child if contact with the grandparents is denied should not have been
applied. The problem with application of the presumption is the burden then to
prove that there’s a substantial risk of harm. In many, if not most cases,
proving substantial risk of harm will be extremely difficult. Here, the specific
facts of the case—in particular, the father’s attempt at suicide prior to the
second day of the trial—would likely have been substantial evidence upon which
to challenge the trial court’s application of the presumption in the first
place. Because this case had such unusual facts—including the fact that the
father was suspected of murdering the child’s mother—the fact that he attempted
suicide during the pendency of the case could support a finding that he was not
a fit parent because he did not consider the physical, mental and emotional
well-being of the child when he chose to attempt to remove himself from the
child’s life. In fact, the suicide attempt itself might have been
argued as grounds for a decision that because the father had proven his
disregard for a need to be available for the child who had already lost one
parent in a violent manner, there would be a substantial risk of harm to the
child’s mental, physical, or emotional health if the court did not grant
grandparenting time in sufficient quantity to preserve the child’s connection to
his maternal grandparents. 3) In
the end, it was the fact and the substance of the expert testimony offered at
the trial that the court of appeals relied upon to justify upholding the trial
court’s decision that the grandparents had met their burden of proof. The
father’s expert declined to offer an opinion on whether there would be a
substantial risk of emotional harm to the child if the child did not see the
grandparents. The grandparents’ expert did, however, offer her opinion that, to
support the child’s mental, physical, and emotional health, it was vital for the
child to have his mother’s memory kept alive for him since he had lost his
mother through these tremendously unfortunate circumstances. The opinion of the court of
appeals seems quite result-oriented, driven by the specific and unusual facts of
the case. Hopefully, the court of appeals’ decision will be limited by the facts
of the case. You may read Keenan v
Dawson, Michigan Court of Appeals Docket No 265725, decided June 5, 2007
here.
Technorati tags: Keenan Dawson, grandparent visitation, grandparent rights, grandparents rights
Comments