As a grandparent, you naturally want to protect your grandchildren, have a close relationship with them, and keep them safe and provided for when times are hard. But can grandparents go to court for custody against a child's parent? Understanding a grandparent's right to seek visitation and custody can be difficult, but in the right circumstances, it can make all the difference for your grandchildren's safety and wellbeing.

Can Grandparents Be Awarded Custody of Their Grandchildren?

Both the United States Constitution and Michigan law protects parents' fundamental rights to care for their children. But sometimes grandparents need to step in because a child's parents are unwilling or unable to provide the care they need. Michigan law allows grandparents to step in to pick up the slack, either through guardianship proceedings in the Michigan Probate Court, or by filing a complaint for third party custody. Other times, grandparents may feel left out when a parent cuts off contact between them and their grandchildren. But not every grandparent can go to court for custody or grandparenting time.

When Can Grandparents go to Court for Visitation?

Before grandparents can go to court for custody or visitation, they must have “standing” or legal authority to file a claim. Michigan law gives grandparents that authority in specific circumstances:

• If the child's parents have a pending or completed divorce, separate maintenance, or annulment case;
• The paternal grandparents of a child with a deceased father
• The maternal grandparents of a child with a deceased mother
• If the child was born to unmarried parents not living in the same household, but paternity has been established (through an Acknowledgment of Parentage or Order of Filiation)
• The child has been placed with someone other than the child's parents, but no adoption has been completed (not including stepparent adoptions)
• The child is living in a separate home from his or her parents
• Within the past year, the child had been living with the grandparent (with or without a formal custody order)

A grandparent can only file a motion for grandparenting time at most once every two years except in cases of good cause.

How Michigan Courts Award Grandparenting Time

Even if grandparents have standing, if both parents of the child are opposed to visitation, the Michigan Family Court is required to deny the request and dismiss the motion or complaint. In practice, this means that most grandparenting time awards happen in high-conflict cases, or cases when children face significant destabilizing factors because of their parents' death, substance abuse, incarceration, or CPS involvement.

Assuming a grandparent has standing, and the child's parents do not file an affidavit opposing visitation, the case can proceed to a hearing. At that hearing, it is up to the grandparents to show that a parent's decision to cut them out of their grandchild's life creates a substantial risk of harm to the child's mental, physical, and emotional health. Often, this requires working with a child psychologist or other expert witness to show how your absence will affect the child going forward.

Finally, the Court will consider whether it is in the children's best interest to award grandparenting time (using factors similar, but not the same as, the best interest factors for custody and parenting time). If so, the Court can award “reasonable time” with the grandparents. The amount and frequency of grandparenting time is decided on a case-by-case basis, but it cannot be so much that it alters the child's custodial arrangement.

Grandparents as Guardians

Sometimes parents are unable to take care of their children. They may be:

• Too young themselves,
• Facing drug or alcohol problems,
• Struggling with mental health or developmental disabilities,
• Having housing instability,
• Abusive or neglectful parents

In these cases, grandparents are often the ones to step in and make sure the kids will be alright. But some decisions about a child's care (such as vaccinations, school enrollment, or medical treatment) can only be made by a legal parent or guardian. Grandparents who find themselves acting as custodians, can file a petition in the Michigan Probate Court to act as the child's full or limited guardian until his or her parents get back on their feet.

Parents can consent to guardianship. Often when they do, the order will include a plan to get them back on track, award the parent visitation with the child, and order the parent to contribute to the financial needs of the child. Guardians need to report back to the probate court each year, but it can be an effective way to help a child's parents get the help they need.

How Third-Party Custody Claims Work

In the most serious cases, grandparents can ask the Michigan Family Court to enter a Third-Party custody order, placing the children in their care until further order of the court. Guardians, grandparents, and other relatives by blood, marriage, or adoption can file a complaint for third-party custody in the Michigan Family Court, but just like in grandparenting time cases, they will need to overcome the legal presumption that parents should control the care of their children. This means they will be held to the Court's highest standard to prove that placement with someone other than their parents is in the children's best interests.

Get Help with Grandparenting Time or Third-Party Custody Claims from a Michigan Family Lawyer

At Bebout, Potere, Cox & Bennion, P.C., we care about you and your family. We help individuals and families in Rochester Hills, Rochester, Troy, Lake Orion, Oxford, Oakland County, Macomb County and throughout Southeast Michigan. We can help you in requesting grandparent parenting time or filing a petition for guardianship or third-party custody to keep your grandchildren safe. Call us at 248-651-4114 or contact us here to speak to an attorney.