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?