LANSING, Mich. (Michigan News Source) – Michigan law has a “grandparenting time” rule (MCL 722.27b) that lets grandparents ask the court for visitation with their grandchildren in certain situations. This law explains how grandparents can file affidavits, request hearings, and present evidence in court.
When grandparents can step in.
Under Michigan law, grandparents can ask a court for visitation under specific circumstances. These include when the child’s parents are divorcing or already divorced, legally separated, or their marriage has been annulled.
Grandparents may also petition if one of the child’s parents has died, if the parents were never married and live apart but paternity has been legally established, or if the child is living with someone other than a parent. In addition, if a grandparent has provided a stable home environment for the child during the year before filing, they may seek visitation. Importantly, the law does give strong deference to the decisions of fit parents: courts presume that a parent’s choice to deny visitation does not harm the child, unless the grandparent can prove otherwise. Furthermore, adoption usually ends a grandparent’s right to seek visitation if it terminates the parental rights of the grandparent’s child, unless it’s a stepparent adoption involving a deceased parent’s child.
Grandparents claimed unsafe conditions and emotional harm – court sided with father.
In the case Mack v. Schmaus, the Schmaus grandparents tried to use the Michigan law pertaining to grandparenting time to get visitation of their grandchild, referred in the court documents as LM, the child of their daughter Amber.
Amber Schmaus and Blake Michael Mack had a daughter, LM, in 2014, though the two never married. After Amber was incarcerated in 2017, Mack was awarded sole custody of LM, and Amber later passed away in 2020. Mack went on to have two more children with another partner, Dezirae Lyons, and the family lived together until Mack and Lyons split in 2022.
The Schmauses filed for visitation rights in 2023, alleging that DNA results proved that Mack was not LM’s biological father, that Lyons had been LM’s primary caregiver, and that Mack’s behavior and household conditions were unsafe. LM had told her grandparents that her father was drunk all the time, her bedroom didn’t have enough heat and he had told her that her grandparents didn’t love her anymore. The Schmauses also told the court that Child Protective Services (CPS) was investigating Mack regarding allegations that he was intoxicated while the children were in his care and that he allowed his ex-stepfather to reside in Mack’s home even though he had an extensive criminal history of domestic violence. The Schmauses also alleged that Mack pleaded guilty to domestic violence in 2013, 2015 and a later incident involving Lyons. The grandparents also claimed LM confided to them that she felt trapped in Mack’s home and was being kept from her siblings and extended family.
Court refuses hearing, grandparents challenge ruling.
Mack denied most of the allegations, stating the Schmauses had little involvement in LM’s life and that the CPS complaint against him was unsubstantiated. The dispute escalated after the Schmauses’ motions for visitation were repeatedly dismissed over procedural issues and because they failed to overcome the legal presumption that a parent’s decision to deny visitation does not harm the child. At hearings, the grandparents insisted that Mack’s actions were damaging LM’s well-being and relationships with her siblings, but the referee and trial court ultimately sided with Mack, concluding that the Schmauses had not met the legal threshold to secure grandparenting time and didn’t move ahead with an evidentiary hearing. The grandparents then appealed the case.
Trial court had blocked grandparents without evidence review.
The Schmauses had submitted affidavits and asked for an evidentiary hearing, but the trial court denied their request without giving them the chance to present evidence. The judge said they hadn’t met the basic requirements needed to even qualify for a hearing.
What the Court of Appeals recently decided.
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According to the Legal News website, on September 10, the Michigan Court of Appeals disagreed. In a published opinion written by Judge Kristina Robinson Garrett, and joined by Judges Thomas Cameron and Philip Mariani, the court reversed the lower court’s decision.
Key points from the appellate ruling:
- The statute clearly allows grandparents who submit affidavits a chance to testify, at a minimum. That means that, when a grandparent requests visitation and provides the required affidavits, a hearing must be held.
- “Opportunity to be heard,” as used in the statute (in subsection (4)(a)), necessarily includes presenting evidence.
- The lower court erred in concluding the Schmauses were not entitled to an evidentiary hearing and that they had not established enough to warrant one.
What else the court said.
The court opinion also explained the changing role of grandparents in modern family structures when they said, “Changes in the composition of American families over the last 125 years have resulted in many states enacting visitation statutes to protect the relationships that children form with nonparent caregivers…supporting the enactment of nonparent-visitation statutes is the notion ‘that children should have the opportunity to benefit from relationships with statutorily specified persons – for example, their grandparents.”
Implications and next steps.
Going forward, lower courts across Michigan will be able to cite Mack v. Schmaus when deciding whether to deny hearings in similar cases. This will likely increase the number of evidentiary hearings in grandparent visitation disputes.
