Grandparent Rights

Your Rights to Custody and Visitation as a Grandparent in Michigan

Divorces and separations are difficult for everyone, but can be particularly traumatizing for children, who often feel as though their world is collapsing around them. At times like these, grandparents can often provide much-needed stability and support to help the child cope with the effects of his or her parents’ separation. The bond between children and their grandparents is often so strong, in fact, that Michigan law recognizes grandparent visitation rights and is even willing to grant grandparents child custody in limited circumstances.

What follows is a guide to visiting rights and child custody for grandparents in Michigan. For more detailed information about any of the topics presented herein, please contact a Grand Rapids child visitation attorney.

Visitation Rights for Grandparents

The primary method by which grandparents get visitation rights to their grandchildren is through consent of the parents. However, the law recognizes that not all parents wish to grant grandparents access to their children and in some cases may even wrongfully deny access. As such, the Grandparent Visitation Bill of 2005 allows grandparents to petition a court for “grandparenting time” in the following circumstances:

• The child’s parents are divorced or separated
• An action for the child’s parents’ divorce or separation is pending before the court
• The child’s parent who is the child of the grandparents is deceased
• The child’s parents have never been married, do not live together, and the child’s paternity has been established
• 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
• The grandparent seeking an order has provided a custodial environment for the child in the year preceding the commencement of the action

While a grandparent may seek an order for grandparenting time in any of the above situations, the courts nevertheless defer to the parents’ wishes as to whether the grandparents should be allowed visitation rights. In all cases, the court presumes 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.” In order to overcome that presumption, the grandparent seeking an order must prove by a preponderance of the evidence that the parents’ decision to deny grandparenting time does create a substantial risk of harm to the child’s mental, physical, or emotional health.

To prove that denial of grandparenting time creates a substantial risk of harm to the child, the grandparent must file an affidavit containing facts supporting the requested order, while a party having legal custody of the child may file an opposing order. If the court determines that the grandparent has overcome the presumption in favor of the child’s parents’ wishes, it will enter an order providing for reasonable grandparenting time if it finds that doing so is in the best interests of the child. If the court finds that the grandparent has not overcome the presumption, it will dismiss the order. The court will also dismiss a motion seeking grandparenting time if two fit parents sign an affidavit stating that they both oppose the order (with some exceptions).

Custody Issues for Third Parties in Michigan

Generally, it is very difficult for individuals who are not the child’s biological parents (including grandparents or significant others) to gain custody of the child. Sometimes parents are unable to care for their children and loving grandparents have provided the daily care for the grandchildren, and if those grandparents meet the requirements of Michigan law, they may be good candidates to obtain a child custody order of their grandchild. Under the Child Custody Act, these individuals are known as “third persons” and may bring actions for custody in the following very limited circumstances:

• The third person is a guardian or limited guardian of the child.
• Both of the following are true:
  • The child was placed for adoption with the third person under the adoption laws of any state and the placement order is in effect at the time the action is filed, and
  • After the placement, the child has resided with the third person for a minimum of six months
• All of the following are true:
  • The child’s biological parents have never been married to each other,
  • The child’s parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under a court order, and
  • The third person is related to the child within the fifth degree by marriage, blood, or adoption

But even if a grandparent has standing to pursue a child custody action under any of the above scenarios, the court is still guided by the presumption that awarding custody to the child’s parents is in the best interests of the child. A grandparent seeking custody of a grandchild must overcome that presumption by presenting clear and convincing evidence — the highest standard in the civil legal system.

When determining what is in the best interests of the child, courts in Michigan look to the following twelve factors:

1. The love, affection, and other emotional ties existing between the parties involved and the child.
2. The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
3. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
4. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
5. The permanence, as a family unit, of the existing or proposed custodial home or homes.
6. The moral fitness of the parties involved.
7. The mental and physical health of the parties involved.
8. The home, school, and community record of the child.
9. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
10. The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
12. Any other factor considered by the court to be relevant to a particular child custody dispute.

As demonstrated, determining what is in the best interests of a child is intensely fact-specific and will depend greatly upon the circumstances present in the individual case. For more information about how courts determine a child’s best interests for the purposes of awarding custody, please contact a Grand Rapids child custody lawyer.

Contact a Grand Rapids Child Visitation Attorney

If you are a grandparent seeking visitation rights or custody of a grandchild, you should speak with an experienced family law attorney to evaluate your options. To get started, please contact a Grand Rapids child custody lawyer at Kraayeveld Family Law by using our online form or calling us at 616-285-0808.