Enacted on January 4, 2005 and effective immediately, Public Act 542 of 2004 (SB 727) amends the Child Custody Act and restores grandparenting time.

This statute is different from Michigan's previous grandparenting time law in several ways, including:

• The law gives preference to decisions fit parents make regarding their children, including the decision not to see a grandparent.
• In order to be awarded grandparenting time, a grandparent must show that a fit parent's decision to deny grandparenting time creates a substantial risk of harm to the child's mental, physical or emotional health.
• Now there are more circumstances when a grandparent will be able to petition for a court to order time with grandchildren.

Basic Requirements

Under the new law, a grandparent can seek an order for time with grandchildren if:

1. An action for divorce, separate maintenance or annulment between the child's parents is currently going on in the court.
2. The court already entered an order for the parents’ divorce, separate maintenance or annulment.
3. The child's parent who is the son or daughter of the grandparent is deceased.
4. The child's parents have never been married, are not residing together and paternity has been established by a court order. Note: when the grandparent making the request is the parent of an alleged, but not proven, father to the child, the right to an order is limited. The alleged (or ‘putative’) father needs to have provided "substantial and regular support or care in accordance with [his] ability” before an order is available.
5. Legal custody of the child has been given to someone other than the child's parent, or the child is placed outside the home.
6. During the year prior to seeking grandparenting time, the grandparent provided a home for the child whether or not there was a custody order.

How to File

A grandparent must request an order by filing a motion with the circuit court in the county where a divorce or similar action would be filed. If no such court is known, it can be filed in the county where the child resides. An affidavit, a written statement describing facts that support the request and signed by the person offering the facts, must be filed at the same time. A grandparent must give notice to the child’s legal custodian and anyone else with parenting time that was previously ordered by the court.

The child’s legal custodian may file their own affidavit to oppose the request. The court will hold a hearing if it is requested.

How the Court Decides

If the court considers a child’ parents to be fit parents, and the parents do not want a grandparent to get a visitation order, the court must dismiss the grandparent’s request.

Otherwise, the law sets up a two-part process. First, a grandparent asking for grandparenting time must present evidence to the court showing that the parent's decision to deny grandparenting time creates a substantial risk of harm to the child. Second, if the grandparent makes such a showing to the court, the court must decide, based on the evidence presented by both the grandparent and the child’s parent, whether grandparenting time is in the best interests of the child.

The statute lists the following factors the court must consider:

• The love, affection and emotional ties between the grandparent and child.
• The length and quality of the past relationship between the child and grandparent, the grandparent's role and the existing emotional ties of the child to the grandparent.
• The grandparent's moral fitness.
• The grandparent's mental and physical health.
• The child's preference, if old enough to make a decision.
• The effect on the child of hostility between the grandparent and the child's parent.
• The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the child's parent(s).
• Any history of physical, emotional or sexual abuse or neglect of any child by the grandparent.
• Whether a parent's decision to deny or not offer grandparenting time is related to the child's well-being or an unrelated reason.
• Any other factor relevant to the child's well-being.

Other Issues

When parents and grandparents disagree about grandparenting time, the court may require them to try to come to an agreement with the help of a mediator. If no agreement is reached, the court must decide the issue.

A grandparent may file a request for grandparenting time only once every 2 years, unless there is a special reason the court accepts as sufficient for making a request more often.

If a person who succeeds in getting a grandparenting order is represented by an attorney, the court may require the opposing party to pay attorney fees.

Modification or Termination

To modify or terminate a grandparenting time order, the court must find that facts arising since entry of the order or facts that were not available when the order was entered prove that a change in circumstances regarding the child or child's parent has occurred. In addition, the court must find that modification or termination is necessary to avoid a substantial risk of harm to the child.