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A trial court committed error by considering the issue of grandparent visitation without being requested to do so

Holding that the issue of grandparent visitation was not properly before the trial court, and agreeing with the plaintiff-mother that when taken as a whole, on this record, the factors "strongly predominate against" any grant of visitation, the court vacated the trial court's order granting grandparent visitation. The custody order was otherwise affirmed. The case was a custody dispute involving plaintiff, the defendant-father, and the paternal grandmother (Intervener), where plaintiff was awarded sole physical and legal custody of the child, but the order included extensive grandparenting time with Intervener. The Intervener had provided the child with an ECE for a number of years before the custody hearing. In "granting plaintiff full physical and legal custody, the trial court methodically considered the child's best interests in MCL 722.23 and concluded that Intervener failed to meet her burden of showing by clear and convincing evidence that the child's best interests would have been served by placing the child in Intervener's care. Necessarily included in that decision was the trial court's tacit finding that plaintiff was a 'fit' parent. Whereas a custody case involves an inquiry as to parental fitness, a proceeding under the grandparent visitation statute presumes parental fitness." While the trial court carefully considered the best interest factors under the grandparent visitation statute, separately from its previous best interests determination on custody, "it nevertheless committed error by even considering the issue of grandparent visitation. Importantly, plaintiff received custody of the child just moments before the trial court's decision on grandparenting time" and thus, had not "denied" Intervener grandparenting time. The trial court, "in rendering an opinion on grandparent visitation absent a request to do so, effectively jumped the gun and presumed that plaintiff would unreasonably deny Intervener grandparenting time. But plaintiff testified that she was amenable to visitation as long as Intervener did nothing to sabotage plaintiff's relationship with the child." Additionally "of critical importance was the fact that the custody proceeding was not conducted in such a way as to elicit whether the child would suffer mental, physical, or emotional harm if grandparent visitation was denied." The court noted that contrary "to the trial court's approach, a request for grandparenting time is not automatically included in a third-party request for custody." 

DIVORCE 45: Federal law preempts state law such that the parties’ consent judgment is unenforceable to the extent that it required defendant to reimburse plaintiff for the reduction in the amount payable to her due to his election to receive CRSC

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