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FAMILY LAW 68: A fit parent’s decision to deny grandparenting time.

Plaintiff and defendant had two children out of wedlock. After plaintiff and defendant separated, they shared legal and physical custody of the children and had alternating parenting time. KT is plaintiff’s mother.

For a short period in 2013 and 2014, plaintiff and the children resided with KT during his parenting time. In 2014, plaintiff’s substance abuse, mental health issues, incidents of domestic violence, and other criminalities led to his parenting time being reduced and supervised and in July 2018 he stopped exercising parenting time because of his incarceration. Thereafter, defendant and KT had a disagreement regarding visitation for the children, and as a result, KT moved for grandparenting time.

Grandparenting Time

The right to grandparenting time arises by statute, MCL 722.27b. As relevant to this case, MCL 722.27b(1)(d) allows a grandparent to seek a grandparenting-time order when the child’s parents have never been married, they are not residing in the same household, and paternity has been established. The Legislature, however, established a presumption regarding a fit parent’s decision to deny grandparenting time.

In order to give deference to the decisions of fit parents, it is presumed 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.

Substantial Risk to Child

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.

In the present case, the trial court never questioned defendant’s fitness as a parent, and nothing in the record suggests that defendant was anything but a fit parent. KT herself recognized that defendant was a good mom who worked hard to provide for the children. Therefore, it is presumed that defendant’s decision not to allow the children to visit KT does not create a substantial risk of harm to the children’s mental, physical, or emotional health.

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