Friday, November 18, 2011

Grandparent Visitation Statute Faces Scrutiny Once Again

by Melissa Cox

Does a grandparent have the right to visitation with their grandchild? This is a common yet difficult inquiry often faced by family law attorneys. Most current state laws are restrictive and ignore the bond between grandparent and grandchild in favor of a parent’s constitutional right to decide what is best for his or her own child. The dispute has played out in courts across the nation for decades and the question is, once again, before the U.S. Supreme Court.

In the 2000 landmark case of Troxel v Granville, the U.S. Supreme Court made a competent parents’ decision the guiding principle in most grandparent right disputes. The heart of the decision is a statement that “fit parents” are presumed to act in their children’s best interests. The state should not, therefore, “inject itself into the private realm of the family” to question the decisions of those parents.

As with any U.S. Supreme Court decision, the Troxel holding had far-reaching repercussions, and many states amended their current laws to meet the constitutional threshold set forth in Troxel. In the 2003 case of Derose v Derose, the Michigan Supreme Court declared its current grandparent visitation law unconstitutional. A new statute was passed in 2005. On June 5, 2007, the Michigan Court of Appeals in the case of Keenan v Dawson held that Michigan’s 2005 grandparent visitation statute is constitutional.

According to the 2005 statute, a court may award visitation--called "grandparenting time"--to a grandparent if any of the following apply: (a) an action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court; (b) the child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled; (c) the child’s parent who is a child of the grandparents is deceased; (d) the child’s parents have never been married, they are not residing in the same household, and paternity has been established; (e) legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; or (f) in the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order. However, may is the operative word in the preceding 6 scenarios because if a fit parent opposes the grandparent’s petition, the grandparent must prove the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. This is often an insurmountable task, which, if not accomplished, results in the dismissal of the action.

The U.S. Supreme Court is expected to decide this winter whether it will revisit the issue of grandparents’ rights. Inherent in that decision is the risk that the Troxel holidng could be overturned. Consequently, Michigan’s 6 year-old grandparenting law may also be in jeopardy.

If you are interested in learning more about grandparent rights, divorce, or family law, please call Melissa Cox at 248-380-0000 ext. 240 or email her at

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