Grandparent visitation | To be or not to be?

Michigan parents are far more fortunate than parents in many other states when it comes to preventing interference in the parent/child relationship by grandparents or other third parties. The Michigan Family Law Section and many other proactive non-profit agencies* [See below] supported strict limits to how third parties, including grandparents can use the court system to obtain grandparenting (or other third-party) access to children when the biological parent(s) object. Sometimes a parent has died, and the surviving parent may object to court-ordered access, Sometimes, it's divorced parents who object.

Sam Hasler, a family law lawyer in Indiana notes that the Indiana legislature has pending legislation that would add great-grandparents to the existing grandparent visitation statute. I have some major criticisms of this proposed legislation. I'm glad that the Michigan legislature has protected Michigan families from intrusion, although I propose that the greater burden of proof discussed here is required for Michigan's law to be constitutional.

Sam quotes the digest of the proposed legislation: House Bill 1055:

As described by its proponents:

"Grandparent and great-grandparent visitation. Allows great-grandparents to seek visitation rights with their great-grandchildren in certain circumstances. Allows a grandparent or great- grandparent to seek visitation if the grandparent or great-grandparent has had meaningful contact with the child but, as a result of an estrangement between the parent of the child and the grandparent or great-grandparent, the parent of the child terminated the child's visits with the grandparent or great-grandparent. Establishes factors for the court to consider in determining whether granting a grandparent or great-grandparent visitation rights is in the best interests of the child. Provides that a court may order a party to an action for grandparent or great-grandparent visitation to pay a reasonable amount for the cost to the other party of maintaining or defending the action, including costs for attorney's fees and mediation. Specifies that certain agencies are not required to pay costs. Makes conforming changes."  [The underlining is mine.]

I like the fact that the proposed act seems to require that a grandparent or great-grandparent, to be eligible to seek GP time, must have had "meaningful contact" with the child -- until, that is, I click on the link above and actually read the proposed Act. There it states that the Court "may consider whether or not a grandparent has had or has attempted to have meaningful contact with the child." Thus, if a grandparent only claims to have tried to interact with a grandchild, that would appear to give him or her the right to petition the court in Indiana. By contrast, in Michigan, a grandparent has a heavy burden to prove, as discussed below.

I also liked the fact that the act purports to provide for the GP to pay costs and attorney fees to the parent for having to defend . . . that is until I read the proposed Act and saw that it really says:

Sec. 1. (a) The court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under IC 31-17-2, IC 31-17-4,  IC 31-17-5, IC 31-17-6, or this chapter and for attorney's fees and mediation services, including amounts for legal services provided and costs incurred before the commencement of the proceedings or after entry of judgment.

So, under this proposed Act, a GP could ask the parent to pay the expenses of filing and litigating a GP visitation petition. Wow! My experience has been that it's the GPs with the money who usually browbeat young parents into submission because the parents cannot afford to litigate. Here's another weapon for GPs who want to cram a grandparenting time order down the throats of parents who oppose it.

The major criticism I have of this proposed legislation is, however, that it doesn't even begin to comply with the requirements of Troxel v Granville, a 2000 U.S. Supreme Court decision holding that the court must give deference to the decisions of fit parents when considering any third party petitions for access to or custody of children. The Indiana statute allows the court to make its decision using a "best interest" analysis -- a subjective standard at best. By contrast, Michigan's statute states:

"(b) In order to give deference to the decisions of fit parents, it is presumed in a proceeding under this subsection 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. To rebut the presumption created in this subdivision, a grandparent filing a complaint or motion under this section must 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. If the grandparent does not overcome the presumption, the court shall dismiss the complaint or deny the motion."

In fact, the Michigan statute protects parents even further. If two fit parents submit an affidavit stating that they both oppose GP visitation, then the court is required to dismiss the petition. Further, a GP cannot make serial attempts to force GP visitation, but cannot file a petition until after two years from a denial. You may read the entire Michigan statute, MCL 772.27a here. (Scroll down on the PDF file).

Another problem I see with the Indiana statute is that a parent who wants to relocate has to deal not only with the non-custodial parent, but also with any grandparent who has a GP visitation order. In Michigan, that is not the case. A Michigan court cannot deny a parent relocation if the prohibition is primarily for the purpose of allowing a grandparent to exercise the rights conferred in a existing grandparenting time order.

Worse yet, nothing in the Indiana statute defines the GPs burden of proof. In Michigan, since the supreme court's decision in Hunter v Hunter, the burden of proof for third parties seeking to interfere with the rights of parents is by clear and convincing evidence.

Perhaps the burden of proof is set out in case law rather than the statute. However, in Michigan, not only does the GP visitation statute set out the burden of proof (by a preponderance of the evidence), but there is a "savings clause" that states that in the event that the Michigan GP statute is found to be unconstitutional because the preponderance of the evidence standard is too low (doesn't sufficiently protect the parent's constitutional rights), then the burden of proof will be by clear and convincing evidence.

It's difficult for me to believe that the Indiana statute has survived a challenge. From my perspective, it is unconstitutional on its face. That's just my opinion. What do you think?

Comments

[Jeanne M. Hannah]

Larry, my heart goes out to you, your wife and your grandchildren. I all too often see children used as pawns--sometimes in divorce and custody cases and sometimes in grandparenting cases. Where there are substantial GP-child bonds, this is a real tragedy.

If you believe that the father of these children would not oppose grandparent visitation, why don't you file a petition for a GP visitation order? It sounds as though this is the only way to proceed.

[Larry Davis]

This is a comment from the other side. My daughter, who has been diagnosed bi-polar, is upset with me personally. Nothing to do with the grandchildren. She has always used the kids to get her way. Now, we can't see them. I have been involved from day 1 with all 3 grandchildren. We have taken them to Disney twice. The last time in Oct 2011. They would come over and spend the night almost every other weekend. We took them to church. We were at every school function. Every couple of weeks, I (grandfather) would go to their schools and bring lunch. All that is gone because my daughter didn't get her way. I am not allowed to visit them in school now. By the way, she is 29 yrs old. Should the kids suffer because of that? A couple of months ago, she called me, wanting me to take the oldest (11 yrs old) because she couldn't handle the fighting between her and her 7 yr old sister. I said we would take her, but only if it was for a couple of months. She didn't want that and suggested I take the 7 yr old instead. She is considered 'fit' by the state. Where are the KIDS rights? They constantly complained about being yelled at.

[Jeanne M. Hannah]

Ashley, I am sorry to reply so late. I have been out of town for a court hearing.

Your mother-in-law sounds like a real piece of work.

You are fortunate that your husband opposes his mother's demand for grandparenting time. Hope that she files a petition soon. Then you and he can file an affidavit opposing it with the court. That will end the action. Please contact me if you need help with that.

[Ashley]

I am also Being bullied into GP rights. My husand and i are in the process of divorcing , and his mother who has haD limited contact with my Daughter. We lived in VA when she was born ,and moved to MI for a while i stayed with his mother for 4 days Before she Kicked me and my 4mo out in the middle of the night in december. Because I wouldnt Follow her Every suggestion on how to Change my babies diaper. I immeidiatly moved in with my parents and lived with them for over a month and a half. I later moved back to VA where She never Attempted to Contact or inquire about my daughter. We recently moved back to MI and In with my mother in law, we were there a week and a half and she Kicked all of us out for the 2nd time in the middle of the night , even went as far as yelling right next to my Sleeping 9mo And didnt even care if she was disrupting her. It was again in the middle of the night, and all because We refused to give her a detailed List of where we were what we were doing and Who we were with Were 22 years old and didnt feel like It was any of her buisness. Now My husband and i are Negotiating divorce And she has wanted nothing to do with my Daughter until i attended a graduation for a friend and I had a sitter for my daughter, she approached me with my husband and demand i get my daughter there now. That she was going to see her. And when i refused to call my sitter and have her bring my daughter She had my husband call the police and Ruined the entire graduation for me. She told the police that i had "Parental kidnapped my daughter" and that i was Hiding her. When my husband had LEFT me with the child and for 4 weeks Expressed no intrese in ever seeing her . not even so much as a Text or phone call to See how she was. Now she called and told me she was going to get grandparents rights and that she would see her whenever she wanted and She would "Show me how a real parent should act" my EX is now "On my side" and says that if she does he will oppose it with me. This woman is A emotional wreck 90% of the time and has to have control over everything at any moment. And i dont want my daughter exposed to her constant Negativity and Emotional mind games. This woman has Contacted me A total of 6 times my daughters entire life to inquire on how she was. shes almost a year old ... How do i prove shes just out to Make my life a living hell because shes not going to get her way.

[Jeanne M. Hannah]

Sarah, the court process is easier when two fit parents can simply sign a joint affidavit (as in Michigan) and the court will then dismiss a grandparent petition for GP visitation.

If only one parent opposes (as in the cases where one parent has passed away), a parent has to oppose in court. Then the specific facts of the case will be persuasive to the court in deciding a GP case. If the GPs have never had a relationship with the child or children, it should be a pretty easy decision for the judge to deny them court-ordered GP time. If there is a strong relationship (ex. Mom and the children have lived with Mom's parents for a year or several years before Mom's death), then the judge is very likely to award significant GP time.

[Sarah]

Well, I am wondering about one parent who is fit in Michigan...can one fit parent's decision in a case have as much weight as two fit parents who oppose grand parenting time?

[Jeanne M. Hannah]

Rachael, I am committed to defending the rights of fit parents to make decisions for their children about what third parties will be allowed to see the child/children. You are correct. Most grandparents are financially able to bully their way into a child's life. Most young single parents are unable to defend themselves because they lack the financial resources to do so. This is blatantly unfair to young parents everywhere, particularly when Michigan law protects the fit parent's right to make these decisions.

[Rachael Bruesch]

I believe this violates the parents right to choose what is best for their child. I myself have been faced with this exact issue. My son's father had little contact with his son before the father passed away. The father's parents had almost no contact with my son prior to his father's death and only 2 days contact after his father's death. After the loss of their son, the GP have decided to take me to court for GP visitation and have made it clear they do not intend to stop. At this point I feel like my son and I are being bullied by strangers through the court system. They are sitting financially well off, where as we are "getting by", and they can continue to take me to court. I am grateful for MI laws protecting the parents "constitutional rights". Thank you Jeanne Hannah for being such a wonderful advocate on this issue. You have given me strength when I felt defeated.

[Andrea C Isrow]

Blatently unconstitutional. It's the parents, and only the parents that should make decisions regarding who the child is around or with whom the child comes in contact.

It is sad to think that my parents, should something happen to me, be denied visitation to my children by my ex but the truth is he's the parent -- and unless he is proved to be unfit than he is presumed to be acting in the best interests of the children.

[Joe Jurecki]

I also do not think it will stand if challenged in the federal courts and have brought this up to a few of the people who were fighting for this