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Lisa Schmidt

Michigan Supreme Court to Decide Grandparents' Rights

Can Grandparents get visitation if the Parent's rights have been terminated?Michigan’s highest court is scheduled to hear the appeal of an opinion that shocked many family lawyers in the state. The question the state Supreme Court will decide is whether grandparents have visitation rights only through their children (the parents), or whether there is an independent right for grandmas and grandpas to spend time with their grandchildren.

In June 2013, a Michigan Court of Appeals struck down two grandparents’ attempt to establish visitation with their grandchild after their son’s rights to his child had been terminated and he later passed away. The court ruled that because the dad’s rights had been terminated, he was no longer legally considered a “natural or adoptive parent” of the child. Since the grandparents’ interest was derived from the parent’s, this termination effectively terminated their grandparenting rights as well. The majority recognized that the statute could imply something else:

“We  acknowledge  that  the  second  sentence  of  MCL  722.27b(5)  appears  to  lend  support  to plaintiffs’ argument in that it mentions a situation in which a grandparent seeks to visit a child even  though  the  child’s  parent  has  had  his  or  her  parental  rights  terminated.”

But after making that concession, the court determined that this exception only applied in step-parent adoption matters, and not when the parent’s rights had been terminated by the juvenile court for abuse. In doing so, it held that grandparenting rights only applied to the parents of the child’s legal parents (rather than biological), whether natural or adoptive.

One judge disagreed. In his dissent, Judge Boonstra disagreed with that definition. He argued that a natural parent was a biological parent, regardless of whether that person was still considered a legal parent of the child. Under that theory, the grandparents’ rights to visitation are a result of biology, rather than the legal standing of their child. He pointed out that in at least the statute described above, grandparents are allowed to request parenting time after a natural parent’s rights have been terminated.

The surprising interpretation by the court and the emphasis Judge Boonstra placed on the issues in the dissent make this an attractive case for the Michigan Supreme Court. They will decide whether “natural parent” means the same thing as “biological parent” and whether the grandparents have the right to visit their grandchild independent of their son’s bad behavior.

If you have a question about grandparents’ rights, contact family attorney Lisa J. Schmidt for a free consultation.

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