In an ideal world, every child would be supported by the love and care of both their parents and a broader extended family including their grandparents. Unfortunately, not every family situation is so ideal. More often than anyone might like, grandparents and parents will disagree over the child's care, or even whether grandparents have any contact with the child at all. This can lead to the question of when, if ever, grandparents can overrule parents' wishes for visitation.

Parents Control the Care and Custody of Their Children

The United States Supreme Court has repeatedly ruled that parents have a fundamental, constitutional right to control the care and custody of their children. That means if two fit parents submit an affidavit telling the Court they agree that their children should not see their grandparents, that decision is all but final. The only exceptions might be when those parents are found unfit by Child Protective Services or the probate court and the children are placed with the grandparents either as part of a protective proceeding or in a minor guardianship. As long as two parents are fit to care for their children, the Michigan family courts will not overturn their mutual decisions about when, how often, and how long children will visit their grandparents.

When Will Courts Grant Grandparenting Time in Michigan?

More often, grandparents will get involved in divorce or custody proceedings by filing a motion for grandparenting time because either the parents can't agree about visitation with the grandparents, or one or both parents is no longer able to weigh in (most often because the parent is deceased or incarcerated). In addition, grandparents have standing if they have provided an established custodial environment for the child (formally or informally) within the last year. In other words, if the child lived with the grandparents recently. In those cases, grandparents will have “standing” (authority) to file a motion in the divorce or custody action to request grandparenting time, asking the Court to overrule a parent's wishes for visitation. But standing only gets the grandparents in the door.

Proving Parents' Denial of Visitation Will Cause Substantial Harm

Even if grandparents do fit into one of the statutory exceptions allowing them to file the motion, if they are filing a motion against the parents (rather than a guardian or other third-party custodian), they will need to overcome the presumption (assumption) that the child's parent is acting in the child's best interests. To do this, the grandparents need to be prepared to demonstrate that denying grandparenting time creates a substantial risk of harm to the child's mental, physical, or emotional health.

This can be challenging because parents, not grandparents, are usually the ones with access to the child's medical providers, school records, and other important documentation. If grandparents are trying to overrule parents' wishes for visitation, they need to be prepared to hire an expert to demonstrate to the Court what will happen if they have no contact with the children. The grandparents' attorneys will likely need to file discovery demands and motions to get that expert access to the child and his or her records, to form the opinion.

How Do Michigan Judges Decide to Award Grandparenting Time

Assuming that grandparents overcome the presumption in favor of a parent's visitation decisions and prove that denying visitation will create a substantial risk of harm to the child, the next step is for the Court to weigh the 10 grandparenting time factors laid out in the Child Custody Act:

• (a)    The love, affection, and other emotional ties existing between the grandparent and the child.
• (b)    The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent.
• (c)    The grandparent's moral fitness.
• (d)    The grandparent's mental and physical health.
• (e)    The child's reasonable preference, if the court considers the child to be of sufficient age to express a preference.
• (f)      The effect on the child of hostility between the grandparent and the parent of the child.
• (g)    The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child.
• (h)    Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent.
• (i)       Whether the parent's decision to deny, or lack of an offer of, grandparenting time is related to the child's well-being or is for some other unrelated reason.
• (j)       Any other factor relevant to the physical and psychological well-being of the child.

These factors are similar, but not the same, as the factors courts use to decide custody disputes between parents. However, they focus on the existing relationship between the grandparents and the child, as well as the family's history and how well the parents and grandparents are able to get along. The closer the grandparents have been to the child, the more likely the Court will award grandparenting time. However, if the parent's reason for denying visitation is related to the child's well-being or some significant bad behavior by the grandparent in the past, the Court will be less likely to overrule the parent's wishes and order visitation.

If the factors weigh in favor of awarding grandparenting time, the Court may enter an order awarding grandparenting time generally, or by setting specific days and times when visitation will occur.

What Happens After the Court Rules on Grandparenting Time?

If the Court upholds the parents' wishes regarding visitation and denies a motion for grandparenting time, that is the end of the story (absent an appeal), at least for the next few years. Grandparents generally cannot file more than one complaint or motion for grandparenting time in a two-year period, except for good cause shown. Going back to court too soon could result in having to pay the parents' attorney fees.

However, if the Court does order grandparenting time, visitation generally must continue according to the court's order until a new motion is filed and decided by the Court. A motion to modify grandparenting time can't just be based on a parent's wishes for visitation. Instead, the parent will need to show:

• New facts, unknown to the Court at the time the first order was entered
• A change in circumstances for the child or custodian that requires modification to avoid a substantial risk of harm to the child

Here, the burden of showing the risk of harm transfers from the grandparents (in the initial complaint) to the parent (in the motion to modify grandparenting time). This means it will be harder for parents to revoke court-ordered visitation rights than it is for them to defend against a grandparenting time motion in the first place.

Get Help with Grandparenting Time 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 file a motion requesting grandparenting time, demonstrate your standing, prove the risk of harm to your grandchildren, and establish that visitation is in their best interest. We can also help you defend against a motion to modify grandparenting time after it has been entered. Call us at 248-651-4114 or contact us here to speak to an attorney.