UPDATES IN MICHIGAN FAMILY LAW

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An unpublished decision from the Michigan Court of Appeals ("COA") [Hollis v Miller, Docket No.  306090, decided November 8, 2012] demonstrates the difficulties a grandparent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.”

Rights of a Biological Parent vs a Third Party Custodian | Re Dux

A compelling question often arises when a biological parent dies and the other parent, having established parentage, but not having an established custodial environment with the minor child(ren), seeks primary custody. This arises most often in the context of the child or children having primarily lived with the mother and/or maternal grandparents. In Frowner v Smith, the Michigan Court of Appeals has given a fresh look at what this scenario looks like in the context of the holdings in Heltzel v Heltzel and Hunter v Hunter.

On April 26, 2012, the Court of Appeals (COA) released an opinion for publication in Frowner v Smith. In the Frowner case, after the mother died, the father--an acknowledged father--sought custody from the maternal grandparents. The seminal issue was whether a biological parent has to satisfy the Vodvarka threshold--i.e., to show a major change in circumstances or good cause--to change custody from a third party custodian after the death of the other biological parent.

Third Party Custody Claims - Sometimes the Non-Parent Wins

While it is not clear from the Court of Appeals' Opinion why the children were not in the custody of their mother, what is clear is that several children were living with their aunt who was, at the time of the custody trial, the guardian for the children. It is not clear where their mother was, but she was obviously not available to care for the children.

Their father sought custody. Thus, this case presents a third party with an established custodial environment with the children seeking custody and the biological father as to whom, under Hunter v Hunter, the parental preference applies. The third party, thus, had the burden of proof by clear and convincing evidence to prove that it was in the best interests of the children to remain with her rather than to live with their father.

Adoption fraud | Should third parties keep child?

Glenn Sacks' Blog Fathers & Families featured an article authored by Robert Franklin, Esq on September 24th, 2009 that caught my eye. I frequently am contacted by fathers who are concerned about their parental rights in cases where the parents have never married. Franklin wrote about a biological father who opposed adoption of his child but the Texas court named prospective adoptive parents as "managing conservators" [in Michigan's parlance, the primary physical custodial parent]. Four years later, a Texas appellate court is sending the matter back to the trial court for a re-determination whether the biological father should have custody of his child instead of third parties.

Last week, while in court on another matter, I listened to oral argument in a case involving a father whose child has already been adopted -- a father who is hoping to overturn the adoption that had been granted because the mother failed to identify him at the time of the adoption in order to destroy his ability to have custody of the child she did not want, the child for whom she had arranged a private adoption.

Two Men & a Baby | Daniellynn's Soap Opera Continues

News reports describe the Larry Birkhead / Howard K. Stern relationship as very friendly and supportive. According to the New York Post, Stern patted Birkhead on the back just after judges in a Bahamian court ruled on April 27 that Birkhead was free to leave the Bahamas with 7-month-old Dannielynn. The judges took less than one hour to rule on and to deny Virgie Arthur’s unusual appeal that challenged a judge's ruling this week that Birkhead could leave remove Dannielynn from the island nation.

According to reports, the members of the three-judge panel opined that the custody battle between Birkhead and Anna Nicole Smith's mother would likely be settled in a U.S. court and saw no reason to keep the Los Angeles photographer from leaving with his daughter. There is still another hearing in the Bahamas on June 8—undoubtedly to resolve the issue of jurisdiction over the custody battle itself. My guess is that the Bahamian court will rule that the custody battle should occur in California on the grounds that it is a “more convenient forum.” Given the Bahamian court’s glacial treatment of Virgie Arthur’s earlier legal maneuvers, one might imagine that she’d turn to another court for relief. It’s pretty obvious that she’ll get nowhere in the Bahamas.

The judges ruled that Virgie’s appeal was without merit because she had cited no reasonable proof to support her argument that Birkhead would not return to the Bahamas for the June 8 hearing. The court then ordered her to pay $3,000 in attorney fees for the frivolous appeal. Perhaps that is just the first of some coming “reality checks” for Virgie. We’ll see just how far she will go in her attempts to wrest custody from Birkhead or to get an order for joint custody of the infant. My review of California law indicates that she lacks standing there to seek custody of Dannielynn.

 

Maryland's Grandparenting Time Statute Ruled Unconstitutional

On January 12, 2007, Maryland’s highest court considered a constitutional challenge of that State’s grandparent visitation statute. The Court ruled in favor of protecting parents against Intrusion by grandparents. Overruling 14-years of state judicial precedent, the court held that absent exceptional circumstances or parental unfitness, and detriment to the grandchildren, grandparents have no right to demand visitation with grandchildren when the parents are oppose contact.

As with all instances in which grandparents feel compelled to seek court intervention in order to maintain a relationship with their grandchildren, this case involved a bitter familial conflict the origin of which went back many years. When Glen and Andrea Koshko opposed demands for visitation by maternal grandparents John and Maureen Haining, the Hainings filed suit and demanded that the court order the parents to give them more time with the grandchildren.

Illinois Enacts Third Party Visitation Law

The State of Illinois recently enacted a law permitting grandparents, great-grandparents, siblings, and even step-siblings to seek visitation under certain circumstances. To review this law, click here.

Grandparents with standing to intervene upon death of mother

In Eljahmi v Elgarmi, Docket No. 270848 (Unpublished, decided November 30, 2006), the Michigan Court of Appeals found error where the trial court set aside an ex parte order granting custody to Elgarmi (the child’s biological father) and permitted the maternal grandparents to intervene and to retain custody of their grandchild who had resided with them since birth.

The mother was the victim of a fatal drive-by shooting. The father was “a person of interest” in the investigation. The grandparents sought a guardianship, but the father, who had only parenting time under the existing custody order obtained the ex parte emergency order a day prior to the hearing on the guardianship matter.

Once the trial court set aside the ex parte order and allowed the intervening grandparents to retain custody, it also suspended the father’s parenting time until such time as he might be cleared in the ensuing investigation of the mother’s death. The father appealed.