Author: Donald Baranski
Michigan grandparents can ask a court to award them grandparenting time if one or more of the following situations apply:
- the grandchild's parents have filed for divorce, "separate maintenance" (legal separation), or annulment in a Michigan court
- the grandchild's parents are divorced, legally separated under a judgment of separate maintenance (a court has issued an order granting the parents a legal separation), or their marriage has been annulled
- the grandchild's parent, who is a child of the grandparents, has died
- the grandchild's paternity has been established, and the grandchild's parents have never married or are not living together in the same household
- except where Michigan law says otherwise, if someone other than the child’s parent has “legal custody” (the right to make major decisions about things like education, culture, and religion), or if the grandchild has been removed from the parent’s home
- the grandparent provided an established custodial environment for the child for at least one year before making the request for visitation, regardless of whether the grandparent had court-ordered custody.
There are two possible options.
In the first option, you'll file a motion with the court asking that a judge grant your request for grandparenting time. It's very important that you file your motion in the correct place. You must file the motion in circuit court in the county where the court has "continuing jurisdiction" (meaning, the ongoing power to make decisions) over the dispute. The court that has continuing jurisdiction is not necessarily located in the place where your grandchild lives. If you have any questions about where to file, you should contact an experienced family law attorney.
In the second option, you can file either a “complaint” (legal paperwork that starts a lawsuit) or a motion in the circuit court in the county where your grandchild lives. The complaint or motion must include an “affidavit” (written declaration) that sets out all the facts that support your request. You'll also have to notify everyone who has legal custody or parenting time about your complaint or motion
In either scenario, expect that the other parties will file a counter affidavit with the court, explaining why they won't agree to your request. Anyone can request a hearing, but if no one does, the judge will likely schedule one anyway. The judge will want to hear everyone out before making a decision.
There are two major hurdles you'll have to clear before a judge will award you grandparenting time.
In the state of Michigan, there is a presumption (a legal assumption) that a fit parent's decision to deny grandparenting time doesn't create a substantial risk of harm to the child's mental, physical, or emotional health.
You'll have to overcome the presumption by a “preponderance of the evidence” (proof that it is more likely than not) that your grandchildren will suffer mental, physical, or emotional harm if they don't spend time with you. The judge will not move on to the second phase unless you can show potential harm to the children.
If the judge finds you've overcome the presumption, the question becomes whether it is in your grandchild's best interests to spend time with you. The court must consider all of the following ten factors:
- the love, affection, and other emotional ties existing between the grandparent and the child
- 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
- the grandparent's moral fitness
- the grandparent's mental and physical health
- the child's reasonable preference, if the court considers the child to be old enough to express a preference
- the effect on the child of hostility between the grandparent and the parent of the child
- 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
- any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent
- whether the parent's decision to deny or decline to offer grandparenting time is related to the child's well-being or is for some other unrelated reason, and
- any other factor relevant to the physical and psychological well-being of the child.
If the judge decides that it's in your grandchild's best interest to spend time with you, then the court will issue an order allowing you to spend a reasonable amount of time with your grandchild. The amount of time and the circumstances of the visits will depend on the particular facts of your case.