Grandparenting Time: When Can a Parent Say 'No' to the Grandparents?
Zawilanski v. Marshall
MiLW No. 08-92229
Michigan Court of Appeals - Unpublished Case
An unmarried couple give birth to a child. The mother is seriously injured; The father passes away unexpectedly. The father's mother ( hereafter the paternal grandmother or 'grandmother') becomes significantly involved in the rearing of the couple's child. As the mother recuperates, the grandmother demands continued contact with the child. Eventually, the mother denies the grandmother access to the child. To forestall a guardianship action, the mother and grandmother agree in principle to the grandmother having limited parenting time with the child. The parties cannot agree on the exact amount of time and request that the Friend of the Court (FoC) issue a recommendation. When the FoC recommends significantly more parenting time than originally agreed-upon by the mother, the mother appeals the final order ratifying the recommendations of the FoC to the Michigan Court of Appeals (MCA). The MCA sided with the mother, finding that the mother's unchallenged status as a 'fit parent' entitled her to a presumption that her denial of additional time to the grandmother “...does not create a substantial risk of harm to the child’s mental, physical, or emotional health.”
What to take away from this case?
The more important subject to learn from this case study is the 'fit parent' presumption found in MCL § 722.27b, which states:
(b) In order to give deference to the decisions of fit parents, it is presumed in a proceeding under this subsection that a fit parent's decision to deny grandparenting time does not create a substantial risk of harm to the child's mental, physical, or emotional health. To rebut the presumption created in this subdivision, a grandparent filing a complaint or motion under this section must 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's mental, physical, or emotional health. If the grandparent does not overcome the presumption, the court shall dismiss the complaint or deny the motion.
In Zawilanski, the mother was denied the presumption that her decision did not create a substantial risk of harm to the child's mental, physical or emotional health. The grandmother should have been required by the FoC and Circuit Court to overcome the aforementioned presumption by showing through a preponderance of the evidence that the mother's decision to limit the grandmother's visitation with the child created a substantial risk of harm to the child's mental, physical or emotional health.
If you are a parent or grandparent and are experiencing difficulty dealing with your co-parent's family, keep the restrictions of MCL722.27 in mind. Although Michigan has more relief available for grandparents than many other states, grandparents do not have the same rights are parents. Parents who are found to be 'fit' still have significant decision-making authority, and that the Court is obligated to presume the parent's decision is appropriate for the parent's child(ren).
Full opinion available here, courtesy of the State Bar of Michigan.