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21
June

Grandparents’ Right to Visitation

By Iafrate & Salassa

grandparent and child after speaking with a child custody lawyer clinton township

When people think about who is most affected by divorce they usually picture the couple and any children they may share, but that is far from the whole picture. Extended family members and friends are also impacted by the divorce process as the parents figure out where they will live and a time schedule for sharing the children. One group of extended members is often particularly affected by divorce – the grandparents. Grandparents typically have a very special and close relationship with their grandchildren that can be badly damaged if communication or in-person contact is limited or cut off. Traditionally, child custody laws did not grant grandparents any legal right to petition for visitation under the premise that allowing parents to control who had access to their children was part a of parent’s fundamental right to raise a child as the parent deems fit. Recently, though, states have started to give grandparents limited rights to ask for visitation after recognizing the importance of this relationship to the well being of the child. Michigan is one of the states in this group, having enacted a law on this subject in 2005.

When Can a Grandparent Ask for Visitation

A grandparent is permitted to seek visitation with his/her grandchildren in the following situations:

  • a petition for divorce, separation, or annulment of the marriage for child’s parents is pending before a court;
  • the child’s parents have divorced, received a court order for legal separation, or had their marriage annulled;
  • one of the child’s parents is deceased;
  • the child’s parents never married or currently live apart but paternity was legally established. Note that parental grandparents cannot petition for visitation if the father has not legally acknowledged paternity;
  • the child is in the custody of someone other than a parent; or
  • the grandparent provided an “established custodial environment” for the child during the previous year, with “established custodial environment” occurring when the grandparent takes on a parental role towards the grandchild such that the child looks to the grandparent for things like comfort, guidance, discipline, and basic necessities.  

How a Court Decides

Michigan law sets a rather high bar that a grandparent must overcome in order to receive a visitation award. As a preliminary matter, it is important to note that if both parents are deemed fit and sign an affidavit contesting grandparent visitation, the grandparent will not be allowed to proceed and the petition will be dismissed. In all other cases, the law grants a presumption that a fit parent does not create a substantial risk of harm to the child by denying visitation with a grandparent. Consequently, a grandparent must overcome this presumption by proving that cutting off contact with the child poses a substantial risk to the child’s mental, physical, or emotional health. Assuming the grandparent successfully overcomes this hurdle, the court must then determine if visitation is in the child’s best interest by considering a number of factors, including:

  • love, affection, and emotional ties the child has with the grandparents;
  • the grandparent’s physical and mental health;
  • how hostility between the parent and grandparent affects the child;
  • the willingness of the grandparent to support a close relationship between the child and the parent; and
  • whether the parent denied the grandparent visitation for the child’s well being or some other reason.

Talk to a Clinton Township Lawyer

Whether you are a grandparent seeking visitation or a parent wishing to contest this kind of petition, the legal standards in these cases are fairly complex and are best handled by an experienced family law attorney. The Clinton Township law firm of Iafrate & Salassa, P.C. has this experience and will fight to obtain the result you want. Contact us to schedule a free consultation.

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