Grandparents and/or nephews rights

[Griffzan]

What is the name of your state (only U.S. law)? Michigan. I am writing this for my mother and nephew. My sister recently passed away and left 2 children behind. The eldest 18 and her daughter 14. Father moved very quickly after her passing and has been granted full custody. The problem with that is that he has had very little to do with his daughter in the last 5 years and although we don't want to try abd take his rights or visitation away we don't want to uproot her from the home (my parents) or from her brother, who wants nothing to do with the father. This little girl barely knows her father through no fault of not trying and is involved in several sports... None of which the father has made an attempt to be at. What, if any, options do my parents and nephew have? Keep in mind she has lived with my parents for the last 5 years, the father also has an open cps case.

 

[Taxing Matters]

What is the name of your state (only U.S. law)? Michigan. I am writing this for my mother and nephew. My sister recently passed away and left 2 children behind. The eldest 18 and her daughter 14. Father moved very quickly after her passing and has been granted full custody. The problem with that is that he has had very little to do with his daughter in the last 5 years and although we don't want to try abd take his rights or visitation away we don't want to uproot her from the home (my parents) or from her brother, who wants nothing to do with the father. This little girl barely knows her father through no fault of not trying and is involved in several sports... None of which the father has made an attempt to be at. What, if any, options do my parents and nephew have? Keep in mind she has lived with my parents for the last 5 years, the father also has an open cps case.

The father has a constitutional right to custody of his daughter here unless and until the state terminates his parental rights or removes the child from his care due to suspected abuse until hearings on termination of his rights can be held. Michigan statute also states that parents have the right of custody of their children. Michigan Compiled Laws(MCL) section 722.2. That said, the parents of the deceased mother may seek what Michigan calls “grandparenting time” with the granddaughter if the father is unwilling to provide visitation to the grandparents. In order to do that, they would need to file a complaint or motion with the appropriate Michigan circuit court. Unless there is an open court proceeding now regarding custody/visitation for the child (which might have been between the mother and father) that will be in the circuit court for the county where the child now resides. It will not be easy. One of the requirements to get grandparenting time is the following:

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.​

MCL § 722.27b(4)(b). Thus, it is not good enough to show that the visitation would be in the best interests of the child. The grandparents must also overcome the presumption in favor of the father and show that the father’s decision to deny the grandparenting time would create “a substantial risk of harm to the child's mental, physical, or emotional health.”

This statute has been upheld by the Michigan courts as constitutional and the court did at least reject a father’s argument on appeal of a grandparenting time decision that the grandparents should have to prove this by a higher standard — clear and convincing evidence — rather than by the lower standard of preponderance of the evidence that the statute uses:

As previously stated, the grandparenting-time statute is consistent with Troxel. Because the grandparenting-time statute presumes that a fit parent's decision to deny grandparenting time does not create a substantial risk of harm to the child, and because it requires a grandparent to prove by a preponderance of the evidence that the parent's decision creates a substantial risk of harm to the child, the statute gives deference to the decisions of a fit parent. See DeRose v. DeRose, 469 Mich. 320, 332, 666 N.W.2d 636 (2003).1 It does not allow the trial court to grant grandparenting time simply because it disagrees with the parent's decision. See id. Moreover, a parent's fundamental right to make decisions concerning the care, custody, and control of their children is not most at jeopardy when a grandparent petitions a court for grandparenting time. See Hunter, 484 Mich. at 269, 771 N.W.2d 694. An order granting grandparenting time does not sever, permanently and irrevocably, a parent's parental rights to a child, and it remains subject to modification and termination. Therefore, we conclude that, because due process concerns are not at their highest in cases involving requests for grandparenting time, see id., the requirement that grandparents, in order to rebut the presumption given to a fit parent's decision, 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 is sufficient to protect the fundamental rights of parents. Father's facial challenge to the constitutionality of the grandparenting-time statute thus fails.​

Varran v. Granneman, 312 Mich. App. 591, 614–15, 880 N.W.2d 242, 255 (2015).

That said, it is not impossible to win grandparenting time in a situation like this. In the Varran case cited above, the mother of the child had died, leaving the child in the custody of the father. At the time the mother died, the child was 5 years old. The child had been living with the father's parents at the time, and continued to live there immediately after the mother's death, but gradually the father had the child live stay with him more and more, and finally when the child was age 11 the father cut off all overnight visits and stated any other visitation had to be supervised. The father's parents thereafter filed a motion for grandparenting time. In the trial court proceedings, the expert who evaluated the child noted that the child, referrred to as “A” in the opinion, was rather despondent about being cut off from his grandparents, whom he regarde as parental figures. That was a significant factor in the court granting the grandparents a temporary grandparent time order. In affirming the trial court, the appeals court said:

A told Fishman that he feels as though he merely exists until the next time he gets to see his Grandparents and is very sad about losing his Grandparents. A stated that he had grown up referring to his Grandparents as “Mom” and “Pop” and that he felt as though he had lost the only home he had known. A stated that being required to live with his father made him feel like he had been kidnapped. A told Fishman that he is afraid of not being able to see his Grandparents; that sometimes he is homesick and lonely; that Grandparents' house feels like home and that is where he belongs and is most welcome; and that, if he could not see Grandparents anymore, his life would be horrible, he would be sad, angry, and depressed, and he would not have much to look forward to.

As previously stated, the evidence showed that A lived with his Grandparents for numerous years and that the Grandparents raised A as their own child. A's statements support that he saw his Grandparents as parental figures and certainly show that not only did he want to spend time with them, he would be angry, sad, and depressed if he could not. Under these circumstances, the evidence did not clearly preponderate against the trial court's finding that a denial of grandparenting time would create a substantial risk of harm to A's mental and emotional health. See Keenan, 275 Mich.App. at 680, 739 N.W.2d 681.​

Varran v. Granneman, 312 Mich. App. 591, 625, 880 N.W.2d 242, 260–61 (2015).

The bottom line is that unless the father’s rights are terminated your parents won’t get a shot at actual custody of your niece. But they might well succeed in getting grandparenting time, though it won’t be easy or cheap to do it if the father fights it. It would be better for everyone if they can work out something among themselves that everyone can agree upon. But if they can’t then your parents need to see a family law attorney to see how likely it is that they might get grandparenting time given the facts of their situation and what it will cost to litigate that.