I recently had a unique opportunity to convince a trial court that a grandparenting time order should be reversed.
The Michigan grandparenting time statute, MCL 722.27b was amended in 2004 after a previous version of the statute was held to be unconstitutional in the 2003 Michigan Supreme Court decision of DeRose v DeRose. In DeRose, the Michigan Supreme Court held that the prior version of the statute violated the fundamental rights of parents to raise their children because it did not require the deciding court to grant any deference to fit parents' decisions regarding grandparent visitation. The Court's decision was based on the 2000 United States Supreme Court decision of Troxel v Granville, in which the high Court held that the state of Washington's nonparent visitation statute was unconstitutional because it allowed the trial court to order visitation without granting deference to the parents' decisions, contrary to the parents' fundamental right and liberty interest in managing the care, custody, and control of their children.
After our Supreme Court decided DeRose, the Legislature amended the grandparenting time statute adding certain subsections therein. As amended, the statute requires a court deciding a grandparent's petition for visitation to presume that a fit parent's decision to deny grandparenting time does not create a substantial risk of mental, physical, or emotional harm to the child, and the grandparent bears the burden of rebutting that presumption by a preponderance of the evidence. However, if, under certain exceptions, two fit parents both oppose visitation, their joint opposition effectively creates an irrebuttable presumption that denial of grandparenting time will not create a substantial risk of harm to the child, and the grandparents' petition must be dismissed.
In my most recent case, after several months and after a friend of the court referral, the trial court decided in my favor that any grandparenting time provided to the grandparent should not be forced by way of court order.
A victory some might say, but such a victory comes with certain attendant responsibilities. These responsibilities subconsciously were instilled in me since I was a child, but I remember as a Pupil of the American Inns of Court while in law school what Judge Patrick Duggan and other senior members tried to instill in Pupils: On a fundamental level, one should be nice to the opposition because you never know when you will need a favor returned. On a benevolent and selfless level, one should ponder what effect one's actions have on others and whether it is for a greater good. As such, although I reminded my client that she should not enter into any more grandparenting time agreements or ever assume the grandmother had custody rights, I did remind her of the important role of grandparents. My client may not want a relationship with the grandparent, but a child only gets 2 sets of biological grandparents and it would be a travesty to deny some deference or token of respect to the grandparent. You can be tough, but it costs nothing to be humane and act in the best interests of a child-or grandchild. If the child wants to spend time with the grandparent the child should not be denied this relationship.
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