Do Grandparents Have Visitation Rights?

Portrait of grandparents and grandchildren having fun together - grandparent visitation rights concept

Grandparents play a vital role in many children’s care. Grandmothers and grandfathers can provide childcare, serve as support for parents stretched thin, and act as their grandchildren’s confidantes and mentors. But when parents and grandparents disagree about the child’s care, it can raise questions about grandparent visitation rights, and whether grandma and grandpa should have any say at all.

Can a Parent Deny a Grandparent Visitation?

Parents, not grandparents, have the ultimate say in the care and custody of their children. Any parent can allow their children to visit their grandparents (on either side of the family) during his or her own parenting time, unless a court has specifically ordered otherwise. The child’s other parent generally cannot block grandparenting time that does not interfere with their own parenting time, unless it would put the child at risk. However, a parent can also deny grandparent visitation during their own parenting time, and that decision will be upheld by the courts.

Parents can also deny a grandparent visitation if their custody order includes a “right of first refusal” provision. These provisions say that if either parent requires childcare for more than a set amount of time (often overnight), they must offer that time to the other parent before anyone else. This can make it hard for children to have “sleepovers with grandma” because the other parent would have to agree to let the grandparents have the time. The same can be true of children who may want to have a sleepover with a friend from school: they may be denied because of a “right of first refusal” clause in a parenting time agreement. So think twice before requesting such a provision.

In Troxel v. Granville, the U.S. Supreme Court issued a milestone opinion on grandparent rights, saying that a parent’s constitutional right to control their child’s upbringing can outweigh grandparents’ visitation rights. Under Michigan law, if two parents – married or otherwise – both sign affidavits saying they don’t want a Court to grant a grandparent’s visitation request, that’s the end of the grandparents’ case. However, not every case is so cut-and-dry. There are many circumstances when grandparents can file a motion for grandparenting time in Michigan family court and stand a chance of prevailing.

When Can Grandparents Sue for Visitation?

The first question in every grandparent visitation case is standing. “Standing” is a legal term that means the legal right to sue. Not every grandparent has standing to sue for visitation. Grandparent visitation can only be requested in certain circumstances:

  • During or after a divorce, action for separate maintenance, or annulment between the grandchild’s parents.
  • If the child’s parent who is the child of the grandparent filing the petition is deceased.
  • If the child’s parents were never married and do not live together (after the father’s legal parentage has been established),
  • After legal custody of the child has been given to a guardian or third party and the child does not live in the parent’s home (but before the child has been placed for adoption),
  • If the grandparents provided an established custodial environment for the child within the past year.

The “Fit Parent Presumption” and Grandparents’ Rights for Visitation

To protect parents’ rights, grandparents’ visitation cases are limited by what is called the “fit parent presumption.” This is a legal assumption that, if a parent is denying a child contact with grandparents, they have a good reason. To overcome this presumption, a grandparent must be able to prove that the denial of parenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. This often requires expert testimony into the psychological impact being cut off from their grandparents will have on the children.

Grandparenting Time and the Child’s Best Interests

Even after overcoming the fit parent presumption, grandparents must still demonstrate that grandparenting time is appropriate according to several “best interest factors” laid out in the grandparenting time statute:

(a) The love, affection, and other emotional ties existing between the grandparent and the child.

(b) 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.

(c) The grandparent’s moral fitness.

(d) The grandparent’s mental and physical health.

(e) The child’s reasonable preference, if the court considers the child to be of sufficient age to express a preference.

(f) The effect on the child of hostility between the grandparent and the parent of the child.

(g) 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.

(h) Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent.

(i) Whether the parent’s decision to deny, or lack of an offer of, grandparenting time is related to the child’s well-being or is for some other unrelated reason.

(j) Any other factor relevant to the physical and psychological well-being of the child.

The parent opposing the motion will have the ability to present evidence that the child’s best interests do not favor granting grandparents visitation rights. Then the Court must make a finding based on those factors.

How Much Visitation Can Grandparents Get

Except in rare cases, grandparents generally are not granted the same time with a child that a parent would be. While some grandparents exercise grandparenting time on alternating weekends, it is also common for the Courts to award just a few hours or overnights each month. The goal in deciding the amount of visitation is to maintain the child’s relationship with the grandparents. Grandparents seeking full custody of their grandchildren must file a different motion and meet different requirements than a motion for visitation.

Grandparents as Guardians and Child Custodians

In addition to a motion for grandparenting time, a child’s grandparents may also file:

  • Petition for Guardianship (or Limited Guardianship) in the Michigan probate court
  • Complaint for third party custody in the Michigan family court

These are different proceedings. In fact, Michigan courts have ruled that grandparents who file a motion for third party custody and fail cannot be awarded grandparenting time unless they specifically asked for it in their complaint.

Guardianships are slightly different from grandparenting visitation rights. “Any person interested in the welfare of a minor” can file a petition for guardianship – including a grandparent. However, a guardianship can only be granted if the parent or parents:

  • Consent to the guardianship,
  • Have had their parental rights terminated or suspended in a prior court order,
  • Are missing,
  • Are involuntarily committed to mental health treatment or incarcerated.

Unlike a grandparent seeking visitation, a petition for guardianship seeks to step into the shoes of the missing or incapable parent and act as primary caretaker of the child. This involves annual monitoring by the court, and in cases of limited guardianships, a plan for parents to restore their parental abilities and resume their custodial role. Once grandparents obtain guardianship, they can then file a complaint for third party custody to further protect their ability to care for their grandchildren.

In a third party custody complaint, the grandparent, guardian, or other person who fits within the statute, must show that placement with the child’s parent (or parents) is against the best interests of the child by clear and convincing evidence. The grandparent must still establish standing (though the requirements are slightly different). The grandparents seeking custody must then meet this high burden even if they have already been caring for the child.

Grandparenting time cases can be complex and emotional. At NSSSB, our Ann Arbor family law attorneys can help both parents and grandparents protect the child’s physical, mental, and emotional health by fighting for what is in the best interest of the child or children. We can help you protect your family’s best interests. Click here to schedule a consultation with one of our experienced attorneys.

Categories: Child Custody