Michigan's Grandparenting Statute Survives Constitutional Attack

In Brinkley v Brinkley, parents divorced. The mother, Lena Brinkley, became estranged from her parents. She refused contact between them and the children and convinced her former spouse, Shannon Brinkley, to do the same. The maternal grandparents filed a complaint under Michigan’s grandparenting time statute, MCL 722.27b.

Section 5 of that law states as follows:

(5) If 2 fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court  shall dismiss a complaint or motion seeking an order for grandparenting time filed under subsection (3). This subsection does not apply if 1 of the fit parents is a stepparent who adopted a child under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, 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.

After the complaint for grandparenting time was filed, the mother and her ex-husband filed a joint affidavit (per section 5) stating that they both opposed an order for grand parenting time. They filed a motion to dismiss the grandparents’ complaint, and the trial court dismissed. Undaunted, the grandparents filed a motion for relief from the order. The trial court denied their motion and awarded attorney fees to Lena Brinkley.

The grandparents filed an appeal in Michigan’s Court of Appeals claiming that section 5 of the grandparenting statute unconstitutionally denies them their constitutional rights to due process and equal protection. They lost in the COA and appealed to the Michigan Supreme Court. That court remanded to the COA “for plenary consideration of the grandparents-maternal grandparents’ constitutional issue.”

On remand, the COA noted the history of grandparenting rights under the statute, in particular noting that after the decision of the US Supreme Court in Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000), Michigan held that its grandparenting law was unconstitutional in DeRose v DeRose, 469 Mich 320; 666 NW2d 636 (2003).

Subsequently, after a hard fought battle in the State Legislature, the law was amended for the purpose of ensuring that fit parents’ decisions to deny visitation to grandparents would be given the “due deference” required by Troxel. The amendments to the statute were the addition of subsections 4(b), 4(c) and (5). Section 4(b) requires a trial court to presume that a fit parent’s decision to deny the visitation does not cause a substantial risk of mental, physical, or emotional harm to the child. But that presumption is rebuttable, and if the grandparents come forward with sufficient evidence establishing a substantial risk of harm, then the trial court may rule in favor of the visitation. MCL 722.27b(4)(b). Section 5, however creates an irrebuttable presumption. This means that if both parents sign the affidavit opposing the visitiation, the court must presume that there is no substantial risk of harm to the children by a denial of grandparent visitation. MCL 722.27b(5).

When this case went back to the COA on remand, the GPs had three arguments. First, in an effort to obtain greater protection (a tougher look at the constitutionality of the law), the GPs alleged that they have a constitutionally protected fundamental right to have a relationship with their grandchildren and that section 5 denied them substantive due process. This argument was summarily dismissed. The COA took umbrage with the GPs’ efforts to recast the issue in terms of their grandchildren’s right to maintain a relationship with the GPs, saying that the GPs had no standing (i.e., no legal right) to raise that argument on behalf of the grandchildren.

Second, they claimed that section 5 is unconstitutional because it deprives them of procedural due process because they are not permitted to challenge the joint affidavit. The COA responded: “That was the whole point behind the statute.”

Third, the GPs claimed that they are deprived of equal protection of the law by Section 5 because it deprives them of the same right to seek visitation as enjoyed by grandparents who face no opposition from the parents. This argument, too, was rejected by the COA.

The COA remanded to the trial court to resolve any issues remaining there . . . i.e., Shannon and Lena Brinkley’s request for attorney fees. Presumably, costs and fees for the Brinkleys' costs on appeal can be awarded.

You can read Brinkley v Brinkley here.

Technorati tags:  grandparent visitation rights

Comments

[Jeanne M Hannah]

Rita:

Every case is decided on its specific facts. Grandparents are able to adopt their grandchildren in Michigan if they are approved by DHS. If the children have been in foster care for a while, however, and the foster parents compete for the adoption, the grandparents do not automatically become the chosen adoptive parents. The decision is based upon the children's best interests.

[RITA]

what about grandparental adoption do they have rights in the state of Michigan and what about Constitutional rights to adopt over a foster family?