COA rules for parents in grandparenting time case

By Lee Dryden
BridgeTower Media Newswires

Citing parents’ “constitutionally protected right to raise their children as they see fit,” a Michigan Court of Appeals panel overruled a lower court that granted grandparenting time over the parents’ objections.

In Geering v. King and Robinson, the panel ruled that the Kalamazoo County Circuit Court erroneously concluded that the parents were unfit. The lower court’s decision was reversed and remanded for entry of an order denying the motion for grandparenting time.

The June 13 published opinion was written by Judge Colleen A. O’Brien, joined by Judges Joel P. Hoekstra and Mark T. Boonstra.

The decision comes nearly a year after the appeals court’s published opinion in Zawilanski v. Marshall regarding grandparenting time. The court held that a Friend of the Court referee deprived the plaintiff of the benefit of the fit-parent presumption and her “constitutionally protected right to make decisions about the care, custody, and management of her child.”

Jennifer M. Alberts, plaintiff’s attorney in the Geering case, said, “Grandparents do not have rights to visitation, so parents’ rights will always be favored over the interests of the grandparents. The only concern that may outweigh the parents’ rights is the well-being of the child, but it is presumed that parents act in their child’s best interests. Thus, it is a high bar for grandparents to meet.”

“These cases largely reaffirmed what has been the law for years and what is clearly laid out in the statute.”

But attorneys Matthew J. Turchyn and Richard S. Victor, who represent grandparent Martin Robinson, said in a joint response that the decision in their case “expressly allows family courts to look beyond a parent’s assertion that he or she is fit.”

“Under this decision, courts are allowed to look at the evidence and examine whether a parent is truly fit to care for his or her children in making a determination on whether to allow ‘two fit parents’ to file an affidavit blocking grandparents from filing a request to see their grandchildren,” they said. “Anyone seeking grandparenting time can now file a petition for grandparenting time with a clearer idea of how the parental fitness issue needs to be addressed.”

The case

Jarret T. Geering and Elizabeth May King have four children together. They engaged in a contentious custody battle over several years, according to the appeals court opinion. A 2013 divorce judgment provided for joint legal custody and that physical custody and parenting time would be addressed in a separate order.

“Nevertheless, the parties’ contentious custody disputes did not come to an end upon the entry of the judgment of divorce,” the opinion stated. “Instead, they grew more complicated, and it is the complications that arose after the judgment of divorce was entered that resulted in the instant appeal.

“Specifically, the issues before this Court on appeal focus on claims made by Martin Robinson, King’s father and the children’s grandfather, and his wife, Shaney Robinson, King’s stepmother and the children’s stepgrandmother, that they were being excluded from the children’s lives. These claims resulted in Robinson and his wife filing a successful motion to intervene on November 25, 2013.”

But a motion for grandparenting time was withdrawn by Robinson at King’s request a few months later because it “added yet another dispute to the already contentious custody proceedings.”

“Apparently, Robinson and his wife remained unhappy with their level of involvement in the children’s lives over the next year or so. Consequently, on February 17, 2015, Robinson, alone this time, filed a second motion for grandparenting time,” according to the opinion.

“In response to Robinson’s motion, Geering and King, who had largely disagreed on all custody-related issues to that point during the proceedings, filed a joint affidavit opposing Robinson’s motion.”

But the trial court granted Robinson’s motion, concluding that Geering and King were unfit parents and that grandparenting time was in the children’s best interests.

“In finding that Geering and King were unfit parents, the trial court explained that due to their ‘inconsistency [in] discipline, the inconsistency in communication, the inconsistency in co-parenting, [and] not fostering the relationship with the other parent,’ the parents ‘created a substantial risk of harm to all four of [their] children’s mental, physical, emotional health.’”

COA analysis

The panel concluded that the lower court’s finding that Geering and King were unfit parents was against the “great weight of the evidence.”

“While we acknowledge that, like most, if not all, parents, Geering and King are not perfect, it is our view that the record before us simply does not support a conclusion that either parent failed to adequately care for his or her children,” O’Brien wrote, citing the parents’ improved relationship as acknowledged by the circuit court.

The opinion stated, “Our conclusion does not necessarily mean that we agree with Geering’s and King’s purported decision to largely exclude Robinson and his wife from the children’s lives. Indeed, it is very apparent from the record that the trial court did not agree with that decision.

“However, parents have a constitutionally protected right to raise their children as they see fit, Zawilanski, 317 Mich App at 48-50, and we cannot deprive them of this constitutionally protected right simply because we, as bystanders who are not intimately involved in the parents’ or the children’s lives, do not agree with a decision made by the parents.

“It may well be that the parents’ decision to alter the relationship that the children, Robinson, and his wife shared negatively impacted the children, but that is not the inquiry, and it is simply not the judiciary’s role to make such a decision for two otherwise fit parents.”

Attorney analysis

The Robinson case did not move the bar for grandparents to see children over parents’ objections, according to Turchyn and Victor of Hertz Schram PC.

“First and foremost, this case was limited to the facts of one specific section of the grandparents visitation statute dealing with if two ‘fit’ parents file affidavits saying that they both do not want a grandparent having any visitation with their child. It does not impact the significant majority of cases and case law involving grandparents who have been denied access to their grandchildren where both parents have not both agreed to deny contact,” they said.

To rebut two parents’ objection to grandparenting time, the evidence must show that at least one parent is not fit, which is not a new analysis, they said, while calling the decision “more of a clarification than a revision of the applicable standards.”

Alberts, of Speaker Law Firm PLLC, said the “main takeaway from Geering is the definition of parental fitness: the Court defined a fit parent as one who ‘adequately cares for his or her children.’”

“This is important as the protections the statute affords to parents are specifically afforded to ‘fit parents,’” she said.

Whether there is a high bar depends on the circumstances, Alberts said.

“If two fit parents deny grandparenting time, then under the statute, the case ends. That is all there is to it. If only one fit parent denies grandparenting time, then the grandparent has to prove that the denial creates a substantial risk of harm to the child. The parent or parents who deny grandparenting time are unfit only if they do not ‘adequately care for’ their children. It is a high bar,” she said.

Attorneys on both sides agreed the case would have been quite different had the parents disagreed with each other on the grandparenting time rather than filing a joint affidavit.

“If the parents disagreed, then the grandparents would have had to prove that the denial of grandparenting time created a substantial risk of harm to the child, rather than having to prove that the parents were unfit,” Alberts said. “It is still a high bar because there is still a presumption that the parent who is denying grandparenting time is acting in the best interests of the children, but it is a rebuttable presumption, rather than the irrebuttable presumption created by filing a joint affidavit.”

Turchyn and Victor said, “When only one parent objects, the family court is required to consider factors that include whether the denial of grandparenting time would pose a substantial risk of harm to a child’s mental, physical, or emotional health. Under those circumstances, the family court is not necessarily required to consider the fitness of the parents. The issue of whether a trial court may conduct its own evaluation of whether two parents who oppose grandparenting time are fit was an issue of first impression, which is why we believe that the Court of Appeals opted to publish the opinion in Robinson.”