Families break up for a number of reasons, including divorce, substance abuse, incarceration and even death of a family member. In these situations, the focus tends to be on the children and the parents. But there is another set of family members whose role is often vital, but whose needs and desires frequently go unaccounted for in the melee – the grandparents.
“Grandchildren are God’s way of compensating us for growing old,” says Mary H. Waldrip in her humorous but widely accepted quote. A great many grandparents would agree. But when a family splinters, it is often the grandparents that are left empty-handed, unable to see their grandchildren with the frequency that they desire and/or had become accustomed. In some cases, they are not able to see their grandchildren at all.
But what many grandparents don’t realize, is that they do have rights. There are in fact options and legal allowances that protect a grandparent’s rights. It is simply a matter of being aware of what they are, and pursuing them. It is also important to know, however, that there are certain barriers that grandparents are likely to encounter, and to expect them.
The United States Supreme Court, and Michigan Courts, recognize that there is a “fundamental right to parent,” this means that parents who are considered to be fit by the court, and are able and willing to care for their children, have the paramount legal right to the custody, care, and nurturing of the children over any rights exercised by a third party. For this reason, a grandparent cannot petition the court for custody unless both parents are deceased or have been deemed unfit by the court, in which case a grandparent’s home is often preferable to a stranger’s home.
But when custody is not the issue, and a grandparent simply wants the opportunity to spend time with their grandchild, a family court in Michigan may award visitation rights to a grandparent under the following circumstances:
1) when there is an action for divorce, separate maintenance, or annulment pending before the court;
2) when the child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;
3) when the child’s parent who is a child of the grandparents is deceased;
4) when the child’s parents have never been married, they are not residing in the same household, and paternity has been established;
5) when legal custody of the child has been given to a person other than the child’s parent, or the child is placed outside of and does not reside in the home of a parent;
6) when the grandparent has provided the child a custodial environment for the child within the past year.
Since the rights of grandparents are not protected by the constitution like the rights of parents, grandparents must prove that it is both within the child’s best interest to have parenting time with the grandparent as well as prove that without the grandparenting time the child’s mental, physical, or emotional health would suffer. While the law is different from state to state, all 50 states do recognize a set of circumstances where grandparents are entitled to custody and visitation
In addition, federal legislation that was passed in 1998 requires courts in each state recognize and enforce grandparental visitation orders from courts in other states. This means that if the court in Michigan has awarded visitation rights to a grandparent, and their grandchild is moved to any other state by the parents, their new home state is legally required to uphold the original visitation order.
If you have grandchildren that you cannot see because of a break in the family structure, speak with one of our experienced family law attorneys. There may be options available to you that you were not aware of, and we will do all we can to help you.