In Michigan, when grandparents are denied access to their grandchild they can petition the court for grandparent visitation rights. The process can be an uphill battle because there are restrictions on their ability to do so successfully. The biggest obstacle to grandparents petitioning for visitation rights is that parents have a Constitutionally protected fundamental right to raise their children without outside interference. This includes deciding who can spend time with their children.
Additionally, grandparents can only petition for visitation under limited circumstances. According to current law, grandparents are able to petition the court to order visitation only if there is an absence of the nuclear family. That is to say that the child’s mother and father are no longer married, are separated, have had their marriage annulled, one of the parents is deceased, or if the parents were never married.
The grandparents must prove that denying them visitation would result in “a substantial risk of harm to the child’s mental, physical, or emotional health.” The harm standard is a notoriously difficult standard to meet. A grandparent must demonstrate that allowing visitation is in the best interests of the child. The court takes into consideration the impact that visitation will have on the parent/child relationship, and also delve into the previous nature of the grandparent/child relationship.
A grandparent has a higher likelihood of success if he/she previously had custody and care of the child. If the grandparent lived with the child, this can work strongly in favor of the court ordering visitation for the grandparent. This may provide that an “established custodial environment” exists between the child and grandparent. An “established custodial environment” is established if: over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” In other words, this establishes that grandparents have taken on a parental role and increases the likelihood for visitation.
If the court rules that grandparenting will be granted, the visitations cannot interfere with the parent-child relationship. Additionally, if ordering visitation is likely to increase friction between the parent and grandparents or to cause problems between parent and child, the court may determine that ordering visitation is not in the best interests of the child.
A grandparent is not able to force visitation when the child’s nuclear family is intact. Furthermore, if two fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court will immediately dismiss a complaint or motion.
So, what should a grandparent do? A grandparent can try and negotiate an informal agreement by reaching out to the parent directly. If this fails and access to the child is denied, the only alternative option is to consult with an attorney who can give specific legal advice pertinent to their particular situation.