“Fit parents” have a constitutionally guaranteed liberty interest in raising their children as they see fit. Grandparents, on the other hand, have no constitutionally protected interests regarding the upbringing of their grandchildren. Therefore, when a “fit parent” denies a grandparent the opportunity to visit his or her grandchild, there is little recourse available to the slighted grandparent. In fact, Michigan’s Child Custody Act, specifically MCL 722.27b(4)(b), requires both deference to a fit parent’s decision and a presumption to protect that decision.
MCL 722.27b(4)(b) creates a presumption that a fit parent’s decision to deny grandparenting time, in and of itself, does not create a substantial risk of harm to the child. In order to rebut this presumption, a grandparent must first prove, by a preponderance of the evidence, that there is a substantial risk of harm in denying grandparenting time.
A recent case, Repholz v Foster, unpublished opinion per curiam of the Court of Appeals, issued January 27, 2015 (Docket No. 322524), illustrates that courts have no discretion to overlook or ignore the fit parent presumption. In Repholz, the Court of Appeals reversed the trial court’s award of grandparenting time because the trial court failed to give the required deference to the mother’s decision. In opposition to statute (which requires the grandparent to rebut the presumption with sufficient evidence), the trial court went so far as to presume that grandparenting time was necessary and appropriate – awarding grandparenting time at a preliminary hearing, prior to hearing any evidence.
At the hearing, the grandmother’s testimony established only that the child enjoyed his visits with the grandparents and described how they spent their time together. Conversely, the mother testified that she saw no substantial risk of harm to the child’s mental, physical, or emotional health arising out of her decision to deny grandparenting time. In fact, the mother testified that it would be better that her child not see the grandparents because the child returned from his visits “obsessed” with when his mother would die and with death in general.
Based on the testimony, the Court of Appeals held that the trial court “did not give the required deference” to the mother’s decision. Furthermore, the grandmother’s testimony failed to “identify any harm to the minor child that would result” from the mother’s decision to deny her grandparenting time. To the contrary, the grandparenting time resulted in the child appearing “upset” and “obsessed with death” after his visits. In short, there was no evidence proffered to overcome the statutory presumption that the mother, a fit parent, created a substantial risk of harm to her child by denying the grandmother grandparenting time. The Repholz Court reasoned it was improper for the trial court to conclude that “‘grandparenting is good, therefore it should occur.’”
Grandparents who wish to pursue grandparenting time must first determine whether they are able to rebut the fit parent presumption. A successful rebuttal will require a showing with either their own testimony, or that of an expert, that the decision to deny grandparenting time in their case would create a substantial risk of harm to the child’s mental, physical, or emotional health.
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