Michigan Military Divorce

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.

Virtual grandparenting visitation

The New York Times today focused on grandparents' webcam visits with their grandchildren—virtual tea parties and virtual hugs. For grandparents who live countries apart or just hundreds of miles apart, there can be real benefits when children and grandparents have access to a computer that is hooked up to a webcam. Newer laptops do have built-in webcams.

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.

When will a petition for grandparent visitation be granted?

I am frequently asked about whether grandparents would or would not have a meritorious claim of entitlement to grandparent visitation. My answer is always the same: “Every case is different. The success of such a petition is going to be entirely dependent upon the particular facts of the case.”

Attorney Charles C. Abut of New Jersey has a nice collection of cases on his Blog New Jersey Family Law. The case summaries are quite helpful to those attempting to understand the possible merits (or lack thereof) of a grandparent visitation petition.

Michigan’s grandparent visitation statute, MCL 722.27b, like that of New Jersey, puts the burden on the GP to prove that there would be a substantial risk of harm to the child if the visitation is not allowed. For this reason, these summaries on Mr. Abut’s website will explain how a Michigan Court may look at a petition.

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Michigan grandparent visitation statute upheld

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.

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.

 

Grandparenting Petition and Stepparent Adoptions

Under Michigan’s Adoption Code, MCL 710.21 to 710.70, adoption of a child by a stepparent under the does not terminate a grandparent’s right to commence an action for grandparenting time with a child. In Warren v Brown (a paternity case), maternal grandparents sought grandparenting time after their daughter died. The facts are pretty convoluted:

The child was conceived out of wedlock and the mother, Warren, separated from Brown.

The mother became involved with Wright. She had a terminal illness, and married Wright the day before she died when the child was 9 months old. The mother named Wright in her will as the child’s guardian and he then became the child’s sole caregiver.

As the child’s sole caregiver and guardian, Wright remarried 3 years later.

As the child’s sole caregiver and guardian, Wright remarried 3 years later.

Wright and his wife became joint guardians. After a year of marriage, they commenced and completed a guardianship adoption.

Paternity & Custody Law | Dannielynn Hope Marshall Stern

I was interviewed on Michigan Talk Radio yesterday about the case involving the infant of Anna Nicole Smith. By yesterday, it had been established that Larry Birkhead is the biological father of Dannielynn. One question involved whether Howard K. Stern could or would be awarded any visitation. In response, I stated that it is my belief that Stern is what family lawyers call "a legal stranger" to this child and that he has no right to request or to be awarded any visitation. Any time that he gets to spend with Dannielynn will be by the grace of Birkhead.

The same is not necessarily true of Anna Nicole's mother, Virgie Arthur who is allegedly seeking guardianship of Dannielynn. While I think a guardianship in her favor has about the same chance as a snowball in Hell since she lacks "standing" (a legal right) to request a guardianship given that the child has a legal biological father, grandparent visitation is a potential. This could only occur, however, upon a finding of unfitness on the part of Birkhead and a finding of fitness on the part of Arthur.

New York grandparenting law withstands challenge

In Matter of E.S. v P.D., 2006 NYSlipOp 02385, March 28, 2006, Appellate Division, Second Department Decided on February 15, 2007, a New York appellate court upheld a trial court decision giving grandparenting time to an 82-year old grandmother of her deceased child’s daughter over the objection of the child’s father.

The Court rejected the father’s contention that the New York statute is facially unconstitutional, noting that the language of the statute accords deference to the decisions of a fit parent and also requires a grandparent to surmount a huge hurdle to overcome the presumption that a fit parent’s decision is in the best interests of the child.

Similarly, the Court rejected the father’s contention that the New York statute is unconstitutional as applied, noting that the grandparent had established that she was the child’s surrogate live-in parent between the ages of 4 and 7.

Daniel E. Clement, author of the New York Divorce and Family Law Blog, has written an excellent analysis of this case. This seems truly to be the kind of case in which grandparent visitation is intended to apply.

Read the New York slip opinion here.

Visit Jeanne Hannah's website for more information

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.