Jennifer M Paine

Under the Michigan grandparenting time statute, MCL 722.27b, a grandparent may seek grandparenting time if

(a) an action for divorce, separate maintenance, or annulment involving the child's parents is pending before the court;

(b) the child's parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;

(c) the child's parent who is a child of the grandparents is deceased;

(d) the child's parents have never been married, they are not residing in the same household, and paternity has been established;

(e) 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; or

(f) in the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.

The statute creates a presumption 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. Guardians and custodians are not afforded this presumption as the statute specifically uses the term parent. Book-Gilbert v Greenleaf, 302 Mich App 538, 547, 840 NW2d 743 (2013) ("permitting guardians or custodians to derive the benefit of the fit-parent presumption would require us to rewrite the statute").

To rebut the presumption, a grandparent 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 will dismiss the action. MCL 722.27b(4)(b). The court may also dismiss the action if two fit parents sign an affidavit stating that they both oppose an order for grandparenting time. MCL 722.27b(5).