Custody law is almost always about families who don’t work as well as they once did. When the families involved become multi-generational, custody cases can get even more complicated. When families split, often it is the grandparents who lose the most. A grandparenting time motion can help restore the balance, but as a recent court of appeals case demonstrates, grandparenting time is hard to do.
The family in Falconer v Stamps was anything but traditional. The mother and father were very young when the baby was born and lived with the paternal grandmother. When the father moved to Arizona for school, the mother went with him but the child stayed behind. Grandma sought a full guardianship and was the custodian of the child. A year later, the parents returned, but by that time, both were drug addicted.
While all four lived together, the father became abusive. The mother left and tried to take the child with her, but the grandmother’s guardianship prevented her from doing so, so she returned for a time. Eventually, the mother left again, stayed with a friend to detox, and then moved in with her grandparents. She worked with Child Protective Services (CPS) to get and stay clean and obtain employment. Once she was stable, she asked the court to cancel the guardianship and grant her custody of the child.
By this time, the child had bonded with the grandmother, who until that time had cooperated with the mother exercising parenting time. But once the mother filed her motion to terminate the guardianship, the grandmother began to do everything she could to obstruct parenting time. CPS got involved again when a professional reported that the grandmother had failed to protect the child from her father’s criminal behavior.
After a long and exhausting trial including psychologists, a guardian ad litem, and a number of caseworkers, the trial judge awarded the mother sole legal and physical custody and awarded the grandmother grandparenting time that resembled a non-custodial parent’s schedule.
But the problem was, the grandmother had never requested grandparenting time. Instead she had defended the custody claim – arguing that the mother was not fit to be the primary custodian. The trial court judge went through all the appropriate factors in determining custody, but then took it on himself to initiate the grandparenting time evaluation.
Custody of a Parent vs Grandparent
When a third party (anybody other than a parent) is seeking custody of a child, she has to overcome the constitutional assumption that a parent has the right to decide the care and custody of her child. To do so, the grandparent has to show that the parent is unfit to take care of the child. The Falconer court addressed the custody issue correctly – giving the mother the benefit of her parental right to care for her child.
Grandparenting Time is Separate
But Falconer raised a distinction between a custody battle and a Motion for Grandparenting Time. One requires an evaluation of a parent’s fitness, while the other assumes a parent is fit and requires the grandparent to overcome that assumption to be awarded grandparenting time. The court ruled:
“Contrary to the trial court’s approach, a request for grandparenting time is not automatically included in a third-party request for custody”
Grandparenting Time Motions Must Show Harm
The Falconer court emphasized that a standard custody determination – even one where a parent’s fitness is at issue – doesn’t address potential emotional harm to the child. A grandparenting time motion does. The court found the great weight of evidence showed that any harm that would be done by severing the bond between grandmother and child was far outweighed by the harm she was doing to the mother-child relationship. However, the trial judge in Falconer hadn’t considered harm at all in deciding to award grandparenting time award.
Multigenerational family law issues bring with them an entirely different level of complexity. Grandparenting time motions and third party custody battles are difficult to win. If you are in a complex multigenerational family situation, contact an experienced family lawyer like Lisa J. Schmidt of Schmidt Law Services, PLLC, in Ferndale, Michigan to schedule a free initial consultation.