Grandparent rights analyzed-- 'If Mom and Dad say no, ask Grandma!'

By Marie E. Matyjaszek

Law Office of Robert Matyjaszek

Grandparents are usually a kid's best defense against the ridiculous rules moms and dads establish, because nana and poppa just can't say no to that adorable face.

They played an important role in my life, although their excitement over the homemade gifts I crafted for them led to an inflated ego about my potholder-making skills.

Walking the few blocks to Telegraph Road to load up on sugar at the Dairy Queen (with grandma's blessing and money of course) still makes me smile.

Michigan law provides for grandparent's rights under a limited basis.

Under MCL 722.27b, a velour-sweatpants clad grandparent can ask for grandparenting time if any of the following circumstances are met:

--if a divorce, separate maintenance, or annulment action is pending or has been finalized between the child's parents; one of the parents of the child is now deceased;

--if the child's parents have never been married, don't live together and paternity has been established;

--if legal custody of the minor child has been awarded to someone other than the parent, or if the child does not live with a parent; or

--if the grandparent has established a custodial environment for the minor child within a year prior to starting the grandparenting time action.

When grandma files her motion with the court for parenting time, she has to prove by a "preponderance of the evidence" (a fancy way of saying the evidence clearly supports one side more than the other) that the denial of grandparenting time creates a "substantial risk of harm to the child's mental, physical, or emotional health."

If she can't prove this, the court will deny the motion and grandma's back to fattening up the neighbor kids instead.

The court gives significant deference to whether or not the parents of the child want their bundle of joy spending time with his grandparents.

The law provides that if the parents are deemed to be fit, and both sign an affidavit stating that they do not want Junior to have grandparenting time, the court must dismiss the grandparent's motion or complaint.

Absent cause, a grandparent can only file a motion once every two years. Because of the rarity of grandparent's rights, I would recommend that a qualified attorney assist any grandparent seeking parenting time to ensure that they don't waste his or her once- every-two-years opportunity if there isn't enough evidence to successfully go forward.

If the grandparent has met the burden, the court must then decide if it is in the child's best interest to have an order for grandparenting time in place.

Ten specific factors are set forth in the statute for the court to consider, such as the emotional ties between the grandparent and child, any history of abuse, the health of the grandparent, and the child's preference (if he's old enough, because we all know any 3-year-old is going to say he wants to go to the land of sugar and "Of course honey, you can have that!" Actually, that sounds really good to me and I'm perpetually 29 years old.)

Assuming the court finds that the grandparents have proven their case by a preponderance of the evidence, the court can also refer the matter to a mediator, or the Friend of the Court, in an attempt to resolve the matter within a reasonable time.

Once an order is in place, new or previously undisclosed facts have to come to light to allow for a termination or modification of the grandparent's parenting time.

Most of us can't imagine not being able to see our grandparents, even if they did drive a station wagon with the front license plate: "Let me tell you about my grandkids!"

Grandparents can have an amazing and positive impact on a child's life in so many ways.

Despite my vivid memories of pink flamingos and hand-painted wooden depictions of a gardener's backside dotting my grandparent's front lawn, they remain unseen at my house.

My neighbors are thankful that this trait skipped a few generations.

The author is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan.

Her blogsite is: http://www.re-ciprocity.blogspot.com

She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com.

Published: Thu, Nov 25, 2010

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