Michigan Court Of Appeals Affirms Grandparenting Time Order

On October 13, 2015, the Michigan Court of Appeals affirmed in a family case a trial court's order granting grandparenting time to the grandparents of a minor child - whose name is abbreviated as A - that the grandparents had raised as their own child since A was a baby.

In Varran v Granneman, Docket Nos. 321866 and 322437, the Michigan Court of Appeals addressed a number of issues related to whether the trial court erred in ordering grandparenting time for the grandparent's of their grandchild A.  On appeal, A's father argued that the trial court's order was appealable by right as opposed to by application for leave to appeal, that the trial court lacked subject-matter jurisdiction in the case, that the grandparenting time statute was unconstitutional, and that the trial court erred in admitting expert testimony, in addition to other issues.

The Court first recited the facts of the case:

Plaintiff Emily Varran (“mother”), who is deceased, and father Peter Granneman (“father”) are the parents of a minor child, “A”, born on November 17, 2002, when the parents were both minors. The parents never married. The mother initially had custody of A, but when A was 8 months old he went to live with father, who resided with his parents, intervening petitioners (“grandparents”). This arrangement continued until 2005 when A was 2 1⁄2 years old. At that time, grandparents asked father to leave their home due to hostility and conflicts. A continued to reside with grandparents and father initially visited A once a week at grandparents’ home. Within a few months, father had A with him on Saturday nights at his apartment.

Mother passed away in 2007. In 2007, father also began having A with him on Friday and Saturday nights. In the summer of 2012, A began living with father during the week and visiting with grandparents every weekend. In the spring of 2013, father reduced A’s visits with grandparents to every other weekend. In May 2013, father advised grandparents that they would no longer have overnight visits with A and that any contact between them and A would be under father’s supervision.

Grandparents, as intervening petitioners, filed a motion for grandparenting time with A in June 2013. In a July 2013 order, the trial court awarded grandparents temporary visitation with A every other weekend from Saturday at 10:00 am to Sunday at 6:00 p.m. and set the matter for an evidentiary hearing. At the conclusion of the evidentiary hearing, the trial court issued a written opinion on April 25, 2014, wherein it determined that A would suffer a substantial risk of future harm to his mental and emotional health if grandparenting time were not granted. The trial court additionally applied the best interest factors set forth in MCL 722.27b and found that it was in A’s best interest to allow grandparenting time. The trial court thereafter, on May 30, 2014, entered an order providing grandparents with visitation with A every other Saturday from 10:00 a.m. until Sunday at 6:00 p.m. Father claimed an appeal from the trial court’s April 25, 2014, opinion granting grandparenting time and its May 30, 2014, order setting a specific grandparenting time schedule. As previously indicated, this Court dismissed both appeals and, on remand, our Supreme Court directed us to address the issue of “whether an order regarding grandparenting time may affect custody within the meaning of MCR 7.202(6)(a)(iii), or otherwise be appealable by right under MCR 7.203(A).” The Supreme Court further directed that if this Court determines that the lower court order is appealable by right, we shall take jurisdiction over father’s claims of appeal and address their merits. Varran ex rel Varran, 497 Mich 928; Varran ex rel Varran, 497 Mich 929. We consolidated both appeals.

The Court then addressed the issue of whether the trial court erred in ordering grandparenting time to A's grandparents:

. . . It is true, as the dissent points out, that the award or denial of grandparenting time did not change the legal custody arrangement between father and now-deceased mother and did not deprive father of sole legal custody of A. But a “change” in custody is not what is required under MCR 7.202(6)(a)(iii)—the language of the rule requires only an order “affecting” the custody, which is materially different. Furthermore, it cannot be ignored that this dispute does not concern a motion to resolve a postjudgment dispute between two parents. Generally, where postjudgment custody issues warrant the trial court’s involvement it is because the two people who have the same fundamental rights to the care and custody of the same child (including decision-making authority) are at odds and the court is required to resolve a stalemate. In this case, however, the dispute concerns the trial court’s award of visitation to a third party—one who is not vested with the same fundamental rights that are ordinarily reserved only for parents—and against the express decision of A’s only living parent and thus the only parent with legal and physical custody. Moreover, during those periods of visitation, this third party will impliedly have at least some of the rights generally reserved to legal and custodial parents (whether to and how to treat the child if he is not feeling well, whether to expose the child to religion and religious practices, what persons, television programs and movies to expose the child to, etc.).

Based on the above and pursuant to the Supreme Court’s remand order in Docket No. 322437, we thus take jurisdiction over father’s claim of appeal and address the merits of the arguments raised by father. We will also treat the claim of appeal in Docket No. 321866 as an application for leave to appeal and grant it . . . .

As previously stated, the grandparenting time statute is consistent with Troxel. Because the grandparenting time statute presumes that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child, and because it requires a grandparent to prove by a preponderance of the evidence that the parent’s decision creates a substantial risk of harm to the child, the statute gives deference to the decisions of a fit parent. DeRose v DeRose, 469 Mich 320, 332; 666 NW2d 636 (2003). It does not allow the trial court to grant grandparenting time simply because it disagrees with the parent’s decision. Id. A parent’s fundamental right to make decisions concerning the care, custody, and control of their children is not most at jeopardy when a grandparent petitions a court for grandparenting time. See Hunter, 484 Mich at 269. An order granting grandparenting time does not sever, permanently and irrevocably, a parent’s parental rights to a child, and it remains subject to modification and termination. Thus, we conclude that, because due process concerns are not at their highest in cases involving requests for grandparenting time, see id., the requirement that grandparents, in order to rebut the presumption given to a fit parent’s decision, prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child is sufficient to protect the fundamental rights of parents. Father’s facial challenge to the constitutionality of the grandparenting statute thus fails . . . .

Trial courts have subject-matter jurisdiction over child custody disputes. Bowie, 441 Mich at 39. Additionally, the power to hear and decide requests by a child’s grandparents for grandparenting time has not been prohibited or given exclusively to another court. See id. Pursuant to the CCA, when a child custody dispute has been submitted to the trial court, either as an original action under the CCA or has arisen incidentally from another action in the trial court, the trial court may, among other actions, “upon petition consider the reasonable grandparenting time of maternal or paternal grandparents as provided in [MCL 722.27b.]” MCL 722.27(f). Accordingly, the trial court had subject-matter jurisdiction to hear grandparents’ motion for grandparenting time. It had the right to exercise judicial power over requests by a child’s grandparents for grandparenting time. Joy, 287 Mich at 253-254 . . . .

Nothing in MCL 722.27b(1), which sets forth when a grandparent may seek a grandparenting time order, requires that there be a denial of grandparenting time before a grandparent may seek a grandparenting time order. In the present case, grandparents brought their motion for grandparenting time pursuant to MCL 722.27b(1)(d) and (f). Father has never disputed that, under MCL 722.27b(1)(d) and (f), grandparents could seek an order for grandparenting time. Thus, under MCL 722.27b(1), grandparents could seek an order of grandparenting time irrespective of whether father had completely denied them all grandparenting time with A. Additionally, MCL 722.27b(4)(b) was included in the grandparenting time statute so that the statute would no longer be constitutionally infirm. See Keenan, 275 Mich App at 678-679. To withstand a constitutional challenge under Troxel and DeRose, a grandparenting time statute must require that a trial court give deference to a fit parent’s decision regarding visitation between his or her child and the child’s grandparent. See DeRose, 469 Mich at 332-333. The Legislature’s intent in enacting MCL 722.27b(4)(b), then, was not to set forth requirements for when a grandparent could seek an order for grandparenting time (as it had already done in MCL 722.27b(1)), but merely to provide a scheme where a parent’s decision regarding visitation was given deference. This is the only logical conclusion
when the grandparenting time statute is read as a whole and when the historical context and development of MCL 722.27b(4)(b) is considered . . . .

A told Dr. Fishman that he feels as though he merely exists until the next time he gets to see his grandparents and is very sad about losing his grandparents. A stated that he had grown up referring to his grandparents as “Mom” and “Pop” and that he now felt as though he has lost the only home he had known and that he had been kidnapped due to being required to live with his father. A told Dr. Fishman that he is afraid of not being able to see his grandparents; that sometimes he is homesick and lonely; that grandparents’ house feels like home and that is where he belongs and is most welcome; and that, if he could not see grandparents anymore, his life would be horrible, he would be sad, angry, and depressed, and he would not have much to look forward to.

As previously stated, the evidence showed that A lived with his grandparents for numerous years and that the grandparents raised A as their own child. A’s statements support that he saw his grandparents as parental figures and certainly show that not only did he want to spend time with them, he would be angry, sad and depressed if he could not. Under these circumstances, the trial court’s finding that a denial of grandparenting time would create a substantial risk of harm to A’s mental and emotional health did not clearly preponderate against the evidence. Keenan, 275 Mich App at 680 . . . .