APPEAL INVOLVES A RULING THAT A PROVISION OF THE CONSTITUTION, A
STATUTE, RULE OR REGULATION, OR OTHER STATE GOVERNMENTAL ACTION IS
OFFICES OF RICHARD S. VICTOR, PLLC
Richard S. Victor (P24827)
Daniel R. Victor (P64703)
By: Scott Bassett (P33231),
W. Long Lake Rd., Ste. 250
Hills, MI 48304
August 12, 2003
Identifying Judgment/Order Appealed From
Plaintiff-Appellant, Catherine DeRose, seeks to have the January 25,
2002 published opinion of the Michigan Court of Appeals, declaring
Michigan=s grandparent visitation statute unconstitutional, and the March 11,
2002, order of the Michigan Court of Appeals, denying her motion for
rehearing, vacated and remanded to the trial court.
Both the opinion and order were decided by a divided panel,
with Judge Jessica R. Cooper dissenting from both determinations.
case is of enormous importance to thousands of Michigan children and
their grandparents. Children
from single-parent families, whether the result of divorce or the
death of one of their parents often have meaningful and
psychologically important relationships with their grandparents.
Unless the Court of Appeals opinion is reversed by this Court,
family division judges in Michigan will no longer have the important
discretion to order grandparenting time over the objection of the
child=s parent or parents, even if the parental decision is directly contrary
to the child=s
majority of state appellate courts addressing the issue subsequent to
the U.S. Supreme Court decision in Troxel v Granville have upheld the
constitutionality of narrowly drawn statutes like Michigan=s
providing for grandparent visitation.
Presented for Review
Whether the Court of Appeals erred in invalidating Michigan=s
already restrictive grandparent visitation statute, MCL 722.27b, on
Did Not Participate
Court of Appeals:
Whether the Court of Appeals erred in finding the Abest
interests of the child@
legal standard provides inadequate guidance to the trial courts in
ruling on motions/actions for grandparenting time.
Did Not Participate
Court of Appeals:
Table of Contents
Identifying Judgment/Order Appealed From and Relief Sought
Presented for Review.............................................................................................
Statement of the Material Proceedings and Facts.......................................................
Summary of Argument
The Court of Appeals erred in invalidating Michigan=s
already restrictive grandparent visitation statute, MCL 722.27b, on
The Court of Appeals erred in finding that the Abest
interests of the child@
legal standard provides inadequate guidance to the trial courts in
ruling on motions/actions for grandparenting time
v Blakely, 83
S.W.3d 537 at 544 (August, 2002)........................................................7
v Cabral 28 SW3d 357 (Mo. App. 2000)....................................................................19
Indus, Inc v Magallanes,
763 SW2d 768, 772 (Tex 1989).......................................20
v Wade, 544 SE2d 99 (Ga 2001)..................................................................................27
of Natural Resources v Seaman, 396 Mich 299, 309, 240 NW2d 206 (1976)............24
v DeRose, 249 Mich App 388; 643 NW2d 259 (2002)..................................8,34,40
v Crawford 520 SW2d 522 (Tex Civ App 1975).............................................20
v Ziny, 246 Mich App 142, 150; 631 NW2d 48 (2001)..............................................37
S. v Joseph E.,
78 NY2d 178; 573 NYS.2d 36; 577 NE2d 27 (1991)....................24
parte DW and JCW
(Unpublished) 2002 W.L. 193868 (February 8, 2002)...........27,28
v Wright (Unpublished) 2001 WL 1538495 (Ohio App. 5 Dist)(
v Fletcher, 447 Mich 87; 526 NW2d 889 (1994).................................................4
v Harris, 795 So2d 350 (La App 2001)
v Heltzel, 248 Mich App 1; 638 NW2d 123; appeal denied 639 NW2d
v Tuhey, 857 SW2d 203 (Mo. banc 1993)..............................................................19
v Hertz, 738 NY S2d 62 (2002)..........................................................................21,22
28 SW3d 357 (Mo App E.D., August 8, 2000)...................................................18
In re the Paternity of Roger D H
v Virginia O., 641 NW2d 440; 250 Wis2d 747 (2002).......................................................................................................................25,26,27
the Matter of the Marriage of Billy Sisson,
13 P3d 152 (Ore App 2000)........................32
v Lilley 43 SW3d 703 (Tex Civ App 2001)..............................................................19,20
v Cons. Laws of N.Y., Book 1, Statutes Section 150).......................................21
v Thomsen 55 SW3d 419 (Mo App 2001)..............................................................18
v Grzesik, 732 NYS2d 773 (2001)........................................................21,22,23,24
v Riendeau, 761 A2d 291 (Me 2000)...................................................................17,18
v Wicker, 32 P3d 1122 (Kan 2001)...........................................................................32,33
v Ross, 798 So2d 1275 (Miss 2001).........................................................................29,31
State of West Virginia ex rel. Brandon L. and Carol Jo L
v Moats, 551 SE2d 674 (2001).................................................................................................................................28
v. Stevenson, 254
NW2d 337, 338 (March, 1977)...........................................16,36
v Gate Pharmaceuticals,
248 Mich App 472, 639 NW 2d 45 (2001)........................24
v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000)...................6,7-15,
Stated v Salerno,
481 U.S. 739; 107 SCt 2095; 95 LEd2d 697 (1987).....................21
Berkel v Power,
16 N.Y.2d 37, 40; 261 N.Y.S.2d 876; 209 NE 2d 539 (1965)............21
v Byrne, 199 Ill2d
309; 769 NE2d 1 (2002).....................................................35
Concise Statement of Material Proceedings and
following is taken from the Counter-Statement of Facts included in the
Brief on Appeal filed with the Court of Appeals by Third-Party
Plaintiff-Appellant=s prior counsel:
Theresa Seymour filed for divorce in 1997.
divorce became final in May 1998.
Appellee and Joseph DeRose are the parents of Shaun Ashleigh
DeRose (DOB 4/1/1996).
the paternal grandmother, filed a pro per motion for visitation, and
the first hearing was held on March 10, 1998.
The conclusion of the Friend of the Court at that time was that
Grandmother lacked standing.
retained counsel, objected to the findings of the Friend of the Court,
and a new investigation was ordered.
In a written investigation dated February 24, 2000, Friend of
the Court recommended supervised visitation with the minor child and
the paternal grandmother. Over
objections, that recommendation was adopted by the court in an order
dated June 12, 2000.
filed a timely Motion for Reconsideration with the trial court.
That Motion was eventually denied on December 19, 2000.
In the meantime, Appellant Grandmother had filed a motion to
enforce visitation. Following
a hearing at Friend of the Court and a De Novo hearing in the trial
court, that motion was finalized on February 5, 2001, with the order
of June 12, 2000 being upheld.
issue here is the treatment by the court of the June 12, 2000 Motion
to Adopt the Recommendation of the Friend of the Court.
That recommendation had three components;
that the paternal Grandmother would have supervised visitation
on alternate Saturdays from noon to 2:00 p.m. for eight months, that
beginning with the ninth month, the paternal Grandmother have
supervised visitation on alternate Saturdays from noon until 4:00 p.m.
and that the Paternal Grandmother not discuss any matters pertaining
to her son=s
incarceration with the minor child.
(Transcript of motion hearing of 06/12/00 pp 2 and 3.)
is crucial to this whole matter that Appellee at no point argued that
such visitation would not be in the best interest of the minor child.
Rather the Appellee exclusively confined her argument to
allegations that the visitation with the subject minor child would be
detrimental to a separate minor child who is a sibling of the subject
minor child and over whom the court has no jurisdiction.
Accordingly, it is to [sic] this issue that the trial Court
spent most of it=s
time responding. (Transcript of motion hearing of 06/12/00 pp 5-11.)
despite no ascertation [sic] by Appellee that grandparent visitation
would not be in the interests of the subject minor child, the Court
does find that visitation would be in the interests of the subject
minor child. (Transcript
of motion hearing of 09/12/00 pp 11 and 12.)
on Appeal, pp 1-1a.
As is obvious from the above excerpt, the facts were not
well-developed at the trial court level.
No testimony was taken by the trial court and this matter was
treated as a purely legal question.
For that reason, if this Court reverses the Court of Appeals
and determines that Michigan=s
grandparent visitation statute is constitutional, it may want to
remand this matter to the trial court for the taking of testimony on
the Abest interests@
erroneously filed a claim of appeal from the trial court=s
order for grandparent visitation.
That appeal was dismissed for lack of jurisdiction.
She then filed a delayed application for leave to appeal.
The Court of Appeals, in an order dated May 9, 2001, granted
the delayed application, stayed the order, and set an expedited briefing schedule.
argument took place in the Court of Appeals on October 8, 2001.
Approximately two weeks later, the Court of Appeals released
its published opinion in Heltzel v Heltzel, 248
Mich App 1 (2001). On January 25, 2002, the Court of Appeals released its
published opinion in this matter.
In a 2-1 decision, Michigan=s
grandparenting time statute, MCL 722.27b, was held
facially unconstitutional, a majority of the panel finding that the
statute failed to provide adequate guidance
to the trial courts in determining whether grandparent
visitation should be granted.
that point, the third-party plaintiff-appellant, Catherine DeRose,
secured the pro bono legal services of counsel and a timely motion for
rehearing was filed with the Court of Appeals.
On March 11, 2002, the Court of Appeals issued an order denying
the rehearing motion by the same 2-1 margin as the original opinion.
third-party plaintiff-appellant sought leave to appeal to this Court
from the January 25, 2002, published opinion and the March 11, 2002,
order denying rehearing. On
October 8, 2002, this Court issued an order granting leave to appeal
on the issue of the constitutionality of the statute, facially or as
applied to this case.
The decision of the Court of Appeals is clearly erroneous from
both constitutional and
statutory perspectives. It
will cause material injustice to the third-party plaintiff-appellant
and thousands of children and grandparents throughout Michigan if the
Court of Appeals decision is affirmed.
Finally, the intermediate Court=s
decision conflicts with a prior published decision of the Michigan
Court of Appeals in Heltzel v Heltzel, 248 Mich
App 1 (2001)
Because this case involves interpretation of case and statutory
law, the opinion of the Court of Appeals is reviewed for legal error.
Fletcher v Fletcher,
447 Mich 871, 881-882; 526 NW2d 889 (1994).
Statute in Question:
The Court of Appeals in the instant case invalided Michigan=s
grandparent visitation statute, MCL 722.27b.
This statute has been in effect for two decades and has been
applied thousands of times by trial courts throughout Michigan.
In its current form, the statute states:
7b. (1) Except as provided in this subsection, a grandparent of the
child may seek an order for grandparenting time in the manner set
forth in this section only if a child custody dispute with respect to
that child is pending before the court. If a natural parent of an
unmarried child is deceased, a parent of the deceased person may
commence an action for grandparenting time. Adoption of the child by a
stepparent under chapter X of Act No. 288 of the Public Acts of 1939,
being sections 710.21 to 710.70 of the Michigan Compiled Laws, does
not terminate the right of a parent of the deceased person to commence
an action for grandparenting time. (2) As used in this section,
"child custody dispute" includes a proceeding in which any
of the following occurs: (a) The marriage of the child's parents is
declared invalid or is dissolved by the court, or a court enters a
decree of legal separation with regard to the marriage. (b) Legal
custody of the child is given to a party other than the child's
parent, or the child is placed outside of and does not reside in the
home of a parent, excluding any child who has been placed for adoption
with other than a stepparent, or whose adoption by other than a
stepparent has been legally finalized. (3) A grandparent seeking a
grandparenting time order may commence an action for grandparenting
time, by complaint or complaint and motion for an order to show cause,
in the circuit court in the county in which the grandchild resides. If
a child custody dispute is pending, the order shall be sought by
motion for an order to show cause. The complaint or motion shall be
accompanied by an affidavit setting forth facts supporting the
requested order. The grandparent shall give notice of the filing to
each party who has legal custody of the grandchild. A party having
legal custody may file an opposing affidavit. A hearing shall be held
by the court on its own motion or if a party so requests. At the
hearing, parties submitting affidavits shall be allowed an opportunity
to be heard. At the conclusion of the hearing, if the court finds that
it is in the best interests of the child to enter a grandparenting
time order, the court shall enter an order providing for reasonable
grandparenting time of the child by the grandparent by general or
specific terms and conditions. If a hearing is not held, the court
shall enter a grandparenting time order only upon a finding that
grandparenting time is in the best interests of the child. A
grandparenting time order shall not be entered for the parents of a
putative father unless the father has acknowledged paternity in
writing, has been adjudicated to be the father by a court of competent
jurisdiction, or has contributed regularly to the support of the child
or children. The court shall make a record of the reasons for a denial
of a requested grandparenting time order. (4) A grandparent may not
file more than once every 2 years, absent a showing of good cause, a
complaint or motion seeking a grandparenting time order. If the court
finds there is good cause to allow a grandparent to file more than 1
complaint or motion under this section in a 2-year period, the court
shall allow the filing and shall consider the complaint or motion. The
court may order reasonable attorney fees to the prevailing party. (5)
The court shall not enter an order restricting the movement of the
grandchild if the restriction is solely for the purpose of allowing
the grandparent to exercise the rights conferred in a grandparenting
time order. (6) A grandparenting time order entered in accordance with
this section shall not be considered to have created parental rights
in the person or persons to whom grandparenting time rights are
granted. The entry of a grandparenting time order shall not prevent a
court of competent jurisdiction from acting upon the custody of the
child, the parental rights of the child, or the adoption of the child.
(7) The court may enter an order modifying or terminating a
grandparenting time order whenever such a modification or termination
is in the best interests of the child.
The Court of Appeals erred in invalidating Michigan=s already restrictive grandparent visitation statute, MCL 722.27b, on
of Argument A: Subsequent to the U.S. Supreme Court=s
decision in Troxel v Granville, 530 US 57, 120 S Ct
2054, 147 L Ed 2d 49 (2000), a clear majority of state supreme and
appellate courts have affirmed the constitutionality of grandparent
visitation statutes that are drawn more narrowly than the Washington
statute that was at issue in Troxel.
The Michigan statute is much more narrowly drawn than the
Washington statute and presents no constitutionally impermissible
invasion of parental authority. Furthermore,
when the grandparenting time provision is read as part of the entire
Child Custody Act, the other provisions of the statute provide clear
guidance to the trial courts in determining whether to grant a request
for grandparenting time, including a deference to the decisions of the
and Subsequent State High Court Decisions:
Following the United States Supreme Court Decision in Troxel
v Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000),
many states have had an opportunity to review their non-parental
visitation statutes in light of the Troxel
decisions from other jurisdictions fall into three categories:
(1) states that found their statute constitutional; (2) states
that found their statute unconstitutional as applied to the facts of
the specific case; and (3) states that found their statute
unconstitutional on its face.
the Troxel decision, state supreme or
appellate state courts, including those in Alabama, Arizona,
California, Colorado, Illinois, Indiana, Kansas, Louisiana, Maine,
Mississippi, Maryland, Massachusetts, Missouri, New Jersey, New York,
Ohio, Oregon, Texas, West Virginia, and Wisconsin, have held their
respective grandparent visitation statutes to be constitutionally
sound. They have done so
because the statutes in these states are fundamentally different from
the statute rejected in Troxel. For
Supreme Court held that their statute, Aavoids the sweeping breadth of the Washington statute in many ways.
For example, in contrast to the Washington statute at issue in Troxel
which allows visitation to any non-custodial person, Missouri limits
visitation to the grandparents of a child.
Consequently, the statute does not create the potential of
Aevery decision to review at the behest of endless third parties@Blakely v Blakely, 83 SW
3d 537 at 544 ( 2002).
Since so much weight appears
to be placed on what the Supreme Court actually did hold in the Troxel
case, appellant believes it most appropriate to review the plurality
opinion of the Supreme Court in Troxel in order
to fully understand the court=s holding. Since this was a plurality opinion, we may find guidance in
all six (6) Opinions and their respective
holdings in this plurality decision.
O=Connor, writing on behalf of Chief Justice Rehnquist, Justice Ginsburg, and
Justice Breyer, clearly set forth in her Opinion that the State of
Washington had two third party non-parental visitation statutes, to
wit.: Wash. Rev. Code '
26.09.240 and 26.10.160(3). The
first is known as their Grandparent Visitation Statute.
Their second is a broad non-parental visitation statute that
person at anytime@.
At page 2 of Justice O=Connor=s
Opinion, she clearly sets forth:
the later statute is at issue in this case.
Section 26.10.160(3) provides:
person may petition the court for visitation rights at anytime
including, but not limited to, custody proceedings.
The court may order visitation rights for any person when
visitation may serve the best interest of the child whether or not
there has been any change of circumstances.
530 US 57, at 58
grandparent visitation law '
26.09.240, is similar to Michigan=s
statute in that it does not provide grandparent visitation rights when
it involves children born out of wedlock.
Since the Troxel v Granville case involved
children who were born out of wedlock, the Troxel
grandparents had to file under the Abreathtakingly broad,@ Aany
person at anytime@
statute. This is
important for the reason that the ultimate decision of the U.S.
Supreme Court in Troxel v Granville only ruled on this
latter statute and did not rule on the constitutionality of the State
grandparent visitation law. In
fact, that law still exists today and is available for grandparents
who find themselves in situations where they need to file actions for
grandparent visitation. When
the Michigan Court of Appeals in the Derose majority opinion stated
put, if a judge in Washington cannot constitutionally be vested with
the discretion to grant visitation to a non-parent based upon a
finding that it is in the child=s
best interest to do so, then a Judge in Michigan cannot be obligated
under statute to do so based upon the same finding.
v DeRose, 249
Mich App 388, 394; 643 NW
2d 259, 263 (2002).
Court of Appeals 2-1 DeRose majority erred in its
assumption that a grandparent in the State of Washington is unable to
bring an action for grandparent visitation
under the State of Washington law which is still in effect and
was never challenged in the Troxel case.
Opinion discussed the nationwide enactment of non-parental visitation
statutes and set forth that these statutes were due, in some
part, to the state=s
recognition of the changing realities of the American family. She
have sought to ensure the welfare of the children therein by
protecting the relationships those children form with such third
parties. The States=
non-parental visitation statutes are further supported by a
recognition, which varies from State to State, that children should
have the opportunity to benefit from relationships with statutorily
specified persons-for example, their grandparents. 530 US 57, at 62, 63
Justice O=Connor=s opinions clearly set forth the flaw in the Washington State law
problem here is not that the Washington Superior Court intervened but,
that when it did so, it gave no special weight at all to Granville=s determination of
best interest. 530 US 57, at 67
the U.S. Supreme Court did not hold that, on a whole, grandparents
lack standing to bring their actions on constitutional grounds but,
that the court should have given Aspecial
weight@ to the parent=s
determination. This is
re-emphasized in Justice O=Connors=s Opinion when she writes:
an ideal world, parents might always seek to cultivate the bonds
between grandparents and their grandchildren.
Needless to say, however, our world is far from perfect, and in
it the decision whether such an inter-generational relationship would
be beneficial in any specific case is for the parent to make in
the first instance. And,
if a fit parent=s
decision of the kind at issue here, becomes subject to judicial
review, the court must accord at least some special weight to
own determination. 530
US 57, at 69 (Emphasis added)
O=Connor, speaking for four (4) of the justices, set forth that these
third party visitation laws were not unconstitutional thereby
precluding third parties from filing third party visitation requests. If so, why would Justice O=Connor=s
Opinion set forth that these decisions were
Afor the parent to make in the first instance@
and then continue with the concept that if the decision
by a fit parent becomes Asubject
to judicial review,@
the court must accord at least some special weight to the parents=
Obviously the United States Supreme Court in Justice O=Connor=s Opinion contemplated that an action could be brought for Ajudicial
review@ if a decision was made to deny a grandparent
visitation by a parent. The
court clearly indicated that a shifting in priorities should take
place and that the burden should not be on the parent to prove why the
visitation should not occur (if objected to) but that the burden
should be on the grandparent as the moving party to show why the
visitation would be in the child=s
best interest. Further, if a dispute occurs, the court should accord Aat least some special weight to the parent=s
Again, if the intent of the Troxel v Granville
Supreme Court decision was to rule that all grandparent visitation
laws were unconstitutional as a violation of the due process clause
protecting the rights of Afit@ parents to make decisions for and on behalf of their children, why
would Justice O=Connor=s Opinion discuss that if a dispute occurs and judicial review is
involved, that these laws should be interpreted to provide Asome
by the court on what the parents of the child in question believe is
best for their own child. Appellant
submits that that is why Justice O=Connor=s Opinion concludes (pp. 14-15) that the Court=s
decision was limited to the Asweeping breadth of Section 26.10.160(3) of the Washington statutes (not
their grandparent visitation statute) and that:
much state court adjudication in this context occurs on a case by case
basis, we would be hesitate to hold that specific non-parental
visitation statute violate due process clause as a per se matter.@
Opinion goes on to then cite all fifty (50) state statutes, including
MCLA 722.27(b) of the Michigan Statutes, specifically rejecting the
request to hold all of these statutes as unconstitutional violations
of the Due Process Clause of the Fourteenth Amendment.
Souter, in his concurring Opinion reiterates that:
see no error in the second reason, that because the state statute
authorizes any person at any time to request (or a judge to award)
visitation rights, subject only to the State=s
particular best interests standard, the State=s
statute sweeps too broadly and is unconstitutional on its face.
Consequently, there is no need to decide whether harm is
required or to consider the precise scope of the parents= right or its necessary protections. (Souter concurring Opinion at
went on to say:
for me is the end of the case. I
would simply affirm the decision of the Supreme Court of Washington
that it=s statute, authorizing courts to grant visitation rights to any person
at any time, is unconstitutional.
(Souter concurring Opinion at p. 5)
Stevens=s dissent provides a full and complete analysis of this case.
Clearly though, his opinion was that the U. S. Supreme Court
should have denied certiorai and not even have
heard the matter. His
decision was based on the fact that the Aany
person at any time@
statute was a bad law that needed to be redrafted. In fact, it is
appellant=s understanding that that specific statute had already been repealed by
the Washington legislature at the time this matter was heard by the U.
S. Supreme Court. Their
non-parental visitation statute currently in affect, is their
grandparent visitation law (which still exists). However, Justice
Stevens spent a great deal of time discussing the concepts of whether
or not there needed to be a showing of actual or potential Aharm@
to a child before a court may order visitation over a fit parents= objection. Justice Stevens states:
...the Washington Supreme Court=s holding-that the Federal Constitution requires a showing of actual or
potential >harm= to the child before a court may order visitation continued over a
objections-finds no support in this Court=s
case law. While, as the
court recognizes, the Federal Constitution certainly protects the
parent-child relationship from arbitrary impairment by the State, see
infra, at 7-8, we have never held that the parents=
liberty interest in this relationship is so inflexible as to establish
a rigid constitutional
shield, protecting every arbitrary parental decision from any
challenge absent a
threshold finding of harm. (Steven=s
Opinion p. 6).
Stevens goes on to state:
even a fit parent is capable of treating a child like a mere
possession. ... There is at a minimum a third individual, whose
interests are implicated in every case to which the statute
applies-the child. (Steven=s
Opinion p. 7)
Stevens further sets forth:
cases leave no doubt that parents have a fundamental liberty interest
in caring for and guiding their children, and a corresponding privacy
interest-absence exceptional circumstances-in doing so without the
undo interference of strangers to them and to their child.
Moreover, and critical in this case, our cases applying this
principle have explained that with this constitutional liberty comes a
presumption (albeit a rebuttable one) that natural bonds of affection
lead parents to act in the best interest of their children.
repeated recognition of these significant parental liberty interests,
these interests have never been seemed to be without limits.
rights with respect to her child, have thus never been regarded as
rather are limited by the existence of an actual, developed
relationship with a child, and are tied to the presence or absence of
some embodiment of family. These limitations have arisen, not simply
out of the definition of parenthood itself, but because of this Court=s assumption that a parent=s interests in a child must be balanced against the State=s
long-recognized interests as parens
patriae, (citations omitted) and critically, the child=s
own complementary interest in preserving relationships that serve her
welfare and protection (citations omitted).
this court has not yet had occasion to elucidate the nature of a child=s liberty interest in preserving established familiar or family-like
bonds, 491, U.S., at 130 (reserving of a question), it seems to
me extremely likely that, to the extent parents and families
have fundamental liberty interests in preserving such intimate
relationships, so, too, do children have these interests, and
so, too, must their interests be balanced in the question.
Opinion pp. 7-9, emphasis added).
Stevens concludes by stating:
seems clear to me that the Due Process Clause of the Fourteenth
Amendment leaves room for states to consider the impact on a child of
possible arbitrary parental decisions that never serve nor are
motivated by the best interest of the child. (Steven=s
Opinion p. 12, emphasis
Kennedy, in his dissent, makes a point that appellant believes is most
salient in this matter,
namely, that it was an error for the state=s
Supreme Court in Washington to come to the conclusion that the best
interest of the child standard is never appropriate in third party
visitation cases. In
fact, he clearly sets forth that the court should have had an
opportunity to reconsider the case and he would have remanded the case
to the state court for further proceedings.
it then found the statute has been applied in an unconstitutional
manner because the best interest of the child standard gives
insufficient protection to a parent under the circumstances of this
case, or if it again declared the statute a nullity because the
statute seems to allow any person at all to seek visitation at any
time, the decision would present other issues which may or may not
warrant further review in this court. (Kennedy Opinion p. 2)
the DeRose matter, there was no best interest hearing held by the
court. Therefore, at the
very least, this matter should be remanded for such an evidentiary
hearing utilizing the best interest factors found at MCL 722.23 (part
of the Child Custody Act of which MCL 722.27(b) is part of) providing
special weight to the parent=s determination that she believes that the visitation requested by
appellant herein is not in her child=s best interest.
Kennedy goes on to state:
say that third parties have had no historical right to petition for
visitation does not necessarily imply, as the Supreme Court of
Washington concluded, that a parent has a constitution right to
prevent visitation in all cases not involving harm.... The
State Supreme Court=s
conclusion that the constitution forbids the application of the best
interest of the child=s
standard in any visitation proceeding, however, appears to rest upon
assumptions the constitution does not require.@
(Kennedy Opinion pp. 5-6, emphasis added.)
Kennedy also discusses the importance of familiar relationship to the
individuals involved and to society and the importance of how this
should be viewed through children as well as from the fact of blood
relationships. (Kennedy Opinion p. 6). He further states:
...in certain circumstances where a child has enjoyed a substantial
relationship with a third person, arbitrarily depriving the child of
the relationship, could cause severe psychological harm to the child,
In re: Smith, 137 Wash. 2d at 20, 969 P.2d at 30; and
harm to the adult may also ensue. (Kennedy Opinion p. 7)
Kennedy goes on to discuss that since 1965, all fifty (50) states have
enacted third party visitation statutes in some form or another and
that each of these statutes, save one, permits a court to order
visitation in certain cases if visitation is found to be in the best
interest of the child (p. 7 Kennedy Opinion).
Justice Kennedy then states:
protection the constitution requires, then, must be elaborated with
care, using the discipline and instruction of the case law system.
We must keep in mind that family courts in the fifty (50)
states confront these factual variations each day, and are best
situated to consider the unpredictable, yet inevitable, issues that
arise. (Kennedy Opinion pp. 8-9).
Kennedy concludes, that in his view, the decision
under review should be vacated and the case remanded for
further proceedings allowing the best interest hearing to take place
utilizing the best interest factors as the standard to be applied in
the State of Washington.
Scalia in his
Opinion is most instructive. Justice Scalia states:
three (3) holdings of this Court rest in whole or in part upon a
substantive constitutional right of parents to direct the upbringing
of their children-two of them from an era rich in substantive due
process holdings that have since been repudiated. (citations omitted)
The sheer diversity of today=s opinions persuades me that the theory of unenumerated parental rights
underlying these three cases has small claim to stare decisis
protection. ... While I would not now overrule those
earlier cases (that has not been urged), neither would I extend the
theory upon which they rested to this new context. (Scalia
Opinion pp. 1-2)
here requests this court to take instruction from Justice Scalia=s Opinion. He clearly sets forth:
vindication of >parental
under a Constitution that does not even mention them requires
(as Justice Kennedy=s
Opinion rightly points out) not only a judicially crafted definition
of parents, but also-unless, as no one believes, the parental
rights are to be absolute-judicially approved assessments of >harm
to the child=
as judicially defined gradations of other persons (grandparents,
extended family, adopted family in an adoption later found to be
invalid, long term guardians, etc.) who may have some claim against
the wishes of the parents. If
we embrace this unenumerated right, I think it obvious-whether we
affirm or reverse the judgment here, or remand as Justice Stevens or
Justice Kennedy would do-that we will be ushering in a new regime of
judicially prescribed, and federally prescribed, family law. I have
no reason to believe that federal judges will be better at this than
State legislatures; and State legislatures have the great advantage of
doing harm in a more circumscribed area, of being able to correct
their mistakes in a flash, and of being removal by the people.
Opinion pp. 2-3, emphasis added).
herein believes that the Court of Appeals in this matter should not
have usurped the
authority of the legislative branch in ruling that the 20 year old
Grandparent Visitation Statute was
Michigan legislature has the right to pass laws affecting its
citizens. The issue of
grandparent visitation is contained within the Michigan Child Custody
Act. As set forth within
this Brief, it is clear that the Act must be read as a whole.
As part of the Act, MCL 722.23 sets forth the specific
interest of the child@
which a Court must utilize when a grandparent visitation request is
made. Further, MCL 722.25
provides that if a dispute occurs between a parent and a third party,
the parent should prevail unless the contrary is established by clear
and convincing evidence. Even
though this specific statute pertains to the issue of custody, Stevenson
v Stevenson 74 Mich App 656; 254 NW2d 337 (1977), sets
1971, the Child Custody Act, (citation omitted) has governed disputes
over child visitation. While the Act focuses on custody disputes, there can be
little doubt that the Act was intended to control visitation
privileges as well. Stevenson,
the long established and undisputed judicial premise, that courts must
do everything possible to maintain the constitutionality of
legislation passed by state legislatures, this Court may utilize the
Child Custody Act and the legislative intent in creating said Act, to
provide direction for Trial Courts when deciding grandparent
visitation cases. Grandparents
have the burden to show that their request is in the child=s
best interest. The twelve (12) factors of the Child Custody Act defining
best interests are the guidelines for the court to follow in making
its decision whether to grant such a request or deny same.
Lastly, if a dispute occurs, the Court must provide Aspecial
weight@ to the preference of the parent and the burden shall be on the
grandparent to rebut/refute the parents= determination. Lastly, the
Court should be mindful of not only the rights of the parent, but also
the rights of the child in being able to maintain and continue a
relationship with their family.
Rideout v Riendeau, 761 A2d 291 (Me 2000),
the Supreme Judicial Court of Maine held that Maine=s
Grandparent Visitation Act, as applied to the facts presented Ais
narrowly tailored to serve a compelling state interest, and thus does
not violate the due process clause of the 14th Amendment of
the United States Constitution.@
Id, at 294.
The Court found that Maine=s
Act was significantly narrower than the Washington statute challenged
in Troxel. The
Court noted that the United States Supreme Court in Troxel
another day a constitutional analysis of statutes with more carefully
established protections of parents=
Rideout, 761 A2d at 297.
Maine=s statute allows grandparents to seek an order for visitation if they
can show: A(1)
The death of one of the parents; (2) A sufficient existing
relationship with their grandchildren; or (3) a sufficient effort to
sustain a relationship.@ Id, at 298.
Additionally, the act set forth additional factors to be
weighed by the trial court in determining the best interests of the
children. Id, at 298, n 10. The Court noted:
constitutional liberty interest in family integrity is not, however,
absolute nor forever free from state interference.
The due process clause is not an impenetrable wall behind which
parents may shield their children; rather it provides heightened
protection against state intervention in parent=s
fundamental right to make decisions concerning the care, custody, and
control of their children.
statute contains fewer Abest
interests@ factors than does the Michigan statute. Our statute utilizes twelve specific best interest factors to
be considered in custody, parenting time, and grandparenting time
Missouri Court of Appeals came to a similar conclusion In Re
GPC, 28 SW3d 357 (Mo App E.D., August 8, 2000).
The Missouri Court found their statute to be narrower than the
statute ruled on in Troxel, noting that it Aprovides
much greater protection of parents=
decision than does the Washington statute because under Section
452.402.1(3) the denial must both be unreasonable and have continued
for at least ninety (90) days before grandparents may file an action
seeking visitation.@ Id. at 364.
The Missouri Court
further distinguished Troxel by noting that its
statute requires the appointment of a guardian ad litem, adding
another voice to the trial court=s best interests determination. Although
permissive rather than mandatory, the Michigan statute does provide
for appointment of a guardian ad litem. MCL 722.22(d); 722.24(2).
a more recent Missouri Court of Appeals case, McRaven v Thomsen
55 SW3d 419 (Mo App 2001), the paternal grandparents
petitioned for grandparent visitation.
The Circuit Court entered an interlocutory order granting
temporary visitation pending completion of trial on the merits. The
parents appealed the interlocutory order. The Court of Appeals held
that in the absence of exigent circumstances and given the fundamental
nature of parents=
rights to rear their children, the trial Court abused it=s
discretion in ordering grandparent visitation before conducting a full
hearing. Far from holding
grandparent visitation unconstitutional, the Court of Appeals held Aunder
the circumstances presented, the trial Court clearly abused it=s discretion in ordering temporary grandparent visitation without
affording parents the right to a full and fair opportunity to present
The Court went on to note that the Missouri Supreme Court has
upheld the constitutionality of Missouri=s grandparent visitation statute in Herndon v Tuhey,
857 SW2d 203 (Mo. banc 1993).
See also Cabral v Cabral 28 SW3d 357 (Mo.
App. 2000) (distinguishing Troxel and
following the Troxel decision the Missouri
appellate courts have held that their statute is constitutional and,
in a dispute, a hearing must be granted to afford parents the
opportunity to present their case prior to the entry of an order for
grandparent visitation. It
should be noted that when McRaven was decided,
the Missouri Court of Appeals was fully aware of the Troxel
decision. Rather than
finding that Troxel mandated a finding that their
statute was unconstitutional, they remanded to the trial court for a
full hearing on merits.
several Texas Court of Appeals decisions after Troxel,
the Texas grandparent visitation statute was also held constitutional.
In Lilley v Lilley 43 SW3d 703 (Tex Civ App
2001), a paternal grandfather sought an order for visitation
with the child following the suicide of the child=s
father. The trial court
ordered visitation with the paternal grandfather.
The child=s mother appealed. The
Court of Appeals held:
evidence was sufficient to support the trial court=s
order allowing paternal grandparent visitation with the child and; (2)
grandparent visitation statute did not violate the mother=s
due process rights, and thus the order granting paternal grandfather
visitation with the child was held to be constitutional.
Court noted that the facts of Troxel and Lilley
cases were similar. Both involved grandparents petitioning for visitation of the
children after the fathers of the grandchildren committed suicide.
However, the Court distinguished the statutes being challenged in the
two cases. The Lilley court held at 43 SW3d
711 that the United States Supreme Court in Troxel
not address whether a non-parental visitation statute must require a
showing of harm or a potential harm to the child before granting
noting that Amuch
state court adjudication in this context occurs on a case-by-case
basis,@ the Court emphasized that it was ruling on Athe
of the Washington Statute and its application to the specific facts at
its statute from the very broad statute challenged in Troxel,
the Lilly court said at 43 SW3d 712:
153.433 of the Texas Family Code is not Abreathtakingly
as was the Washington statute in Troxel....
Section 153.433 allows only grandparents, under particular
circumstances, to petition for access to a child, provided it is in
The Lilley court went on to hold that the
Texas grandparent visitation statute ('153.433)
had already been examined and held to be constitutional in several
other Texas appellate decisions. (See Deweese v Crawford
520 SW2d 522, 526 (Tex Civ App 1975) overruled on other grounds by Cherne
Indus, Inc v Magallanes, 763 SW2d 768, 772 (Tex 1989).
state has sufficient interest in the family relationship to permit
legislation in this area.@).
The Lilley court concluded with the
Texas statute is not unconstitutional on its face or in the district
court=s application to the facts at hand.
at 43 SW3d 713.
state appellate courts addressing the constitutionality of grandparent
visitation statutes post-Troxel have upheld those
statutes. For example, on
February 25, 2002, in the Supreme Court, Appellate Division, 2nd
Department, New York, in the matter of Hertz v Hertz,
2001 WL 1794631 (2002) it was held:
issue on this appeal is whether Domestic Relations Law '
72, New York=s grandparental visitation statute is unconstitutional on its face in
light of the decision of the United States Supreme Court in Troxel
v Granville (citation omitted).
We conclude that the statute is not facially invalid.
court=s analysis in the Hertz, supra case, went on to
to the parents=
contention in this case, Troxel does not mandate
a finding that Domestic Relations Law '
72 is unconstitutional per say (see matter of Morgan v Grzesik,
280 AD 2d 150, 732 NYS 2d 773).
>A facial challenge to a legislative act is.... the most difficult
challenge to mount successfully since the challenger must establish
that no set of circumstances exists under which the act would be
(United Stated v Salerno, 481 U.S. 739,
745, 107 S.Ct.2095, 95 L.Ed.2d 697).
The fact that a statute might operate unconstitutionally under
some circumstances is insufficient to render it entirely invalid (see
United States v Salerno, Supra at 745, 107 S.Ct. 2095).
Legislative enactments are presumptively valid and a party
challenging a statute must demonstrate its invalidity beyond a
reasonable doubt (see matter of Van Berkel v Power,
16 NY 2d 37, 40; 261 NYS 2d 876, 209; NE2d 539; McKinney=s
v Cons. Laws of N.Y., Book 1, Statutes Section 150).
The burden was not met in this case.
Hertz was a case where a grandfather commenced
proceedings under New York=s
Domestic Relations Law to obtain visitation with his minor
parents moved to dismiss the case.
The Supreme Court granted their motion determining that the
statute was unconstitutional on its face.
The grandfather appealed.
The appellate court reversed holding that the New York
grandparent visitation statute was not facially invalid and therefore
the Supreme Court erred in concluding that Domestic Relations Law ' 72 is unconstitutional per say and in dismissing the petition on that
ground. We note that the
motion raised only the issue of whether Domestic Relations Law ' 72 is facially invalid under Troxel.
In determining that it is not, we express no opinion with
respect to the application of the statute to the facts of this case.
the matter was reversed and remanded for a hearing utilizing New York=s
grandparent visitation statute, similar to Michigan=s,
to determine what would be in the best interests of the minor
Morgan v Grezesik, 732 NYS2d 773 (2001), a
grandmother brought an action seeking visitation with her
grandchildren over opposition of the children=s
parents. The New York Family Court granted visitation.
On appeal, the New York Supreme Court, Appellate Division, held
that the parents=
due process right to make decisions regarding their children was not
violated by issuance of an order granting the grandmother visitation.
Again, the Appellate Division held:
contentions, we conclude that Troxel does not call into
question the facial validity of Domestic Relations Law '
72 and that the application of the Domestic Relations Law '
72 to this case does not violate respondents=
rights under the due process clause.
Relations Law '
72 provides in relevant part:
either or both of the parents of a minor child, residing within this
state, is or are deceased, or where circumstances show that conditions
exist which equity would see fit to intervene, a grandparent or the
grandparents of such child may apply... to the family court... and
...the court, by order after due notice to the parent or other person
or party having the care, custody, and control of such child, ... may
make such directions as the best interests of the child may require,
for visitation rights for such grandparent or grandparents in respect
to such child.
contend that, in light of Troxel [citation
omitted] the statute is unconstitutional on its face.
its analysis, the Appellate Division distinguished the New York
grandparent visitation statute from the Aoverly
broad@ statute which was challenged in Troxel.
In fact, despite the erroneous statement in the Michigan Court
of Appeals opinion in the instant case, the New York court recognized
that the statute challenged in Troxel was not the
Washington grandparent visitation statute.
The Washington grandparent visitation statute found at Section
26.09.240 of the Washington code permits grandparents to file a
request to see their grandchildren only if there has been a death of a
parent or a divorce. Children born out of wedlock are not covered
pursuant to that statute for grandparent visitation.
This statute was not invalidated by Troxel
and remains viable and constitutional in Washington.
Troxel, because the children were born out of
wedlock, the Troxel grandparents could not file
their request for grandparent visitation under Washington=s
limited grandparent visitation statute. (26.09.240).
Instead, they were forced to file under a general Anon-parental visitation statute@ found at Section 26.10.160. That
very broad statute granted legal standing for visitation to Aany
person at any time.@
holding in Troxel distinguishes the vast majority
of state grandparent visitation laws (most of which have been deemed
constitutional because of their limited scope like that found in
statute) from Washington=s overly broad general third-party visitation statute.
Returning to the New York decision in Morgan,
supra, it was held:
Relations Law '
72 is more narrowly drawn than the Washington statute. In contrast to
the Washington statute, Domestic Relations Law '
72 is limited to grandparents. Additionally, the standing of
grandparents is not automatic unless either or both of the parents of
the grandchild had died. >In
all other circumstances, grandparents will have standing only if they
can establish circumstances of which equity would see fit to
(Matter of Emanuel S. v Joseph E., 78 NY2d
178, 181; 573 NYS.2d 36; 577 NE2d 27).
Morgan court held:
deciding that threshold question, the court is required to examine all
the relevant facts, including the nature and basis of the parents=
objection to visitation and the nature and extent of the
Morgan court then went on to declare that the New
York Grandparent Visitation statute was not unconstitutional.
Law clearly states that before rendering a specific statute written
and passed by the Legislature unconstitutional, the court must read
the act as a whole. Taylor
v Gate Pharmaceuticals, 248 Mich App 472, 478; 639 NW 2d 45 (2001)
Child Custody Act is found at MCL 722.21 et seq. Michigan=s
grandparent visitation statute (MCL 722.27b) is an integral part of
the Child Custody Act, found at '7b
of the larger statute. Whether
or not this Act should be read as a whole is well settled Michigan
criteria this Court has utilized in evaluating legislative standards
are set forth in Dep't of Natural Resources v Seaman, 396
Mich 299, 309; 240 NW2d 206 (1976):
1) the act must be read as a whole;
2) the act carries a presumption of constitutionality;
and 3) the standards must be as reasonably precise as the
subject matter requires or permits.@
Taylor, at 479.
within the Act=s
provisions is MCL 722.24(2):
at any time in the proceeding, the court determines that the child=s best interests are inadequately represented, the court may appoint a
lawyer - guardian ad litem to represent the child. A lawyer - guardian ad litem represents the child and has
powers and duties in relation to that representation as set forth in '
17d of Chapter XIIA of 1939 PA288, MCL 712A.17d.
addition, our statute contains the necessary presumptions when there
is a dispute between a parent and a third person, as mandated by the
Supreme Court in Troxel.
MCL 722.25 clearly states that if a dispute is between
the parents or between third persons, the best interests of the child
control. The statute goes
on to say that the court will presume that the best interests of a
child are served by awarding custody to the parent or parents, unless
the contrary is established by clear and convincing evidence.
Because this language is found within the larger Child Custody
Act, its terms apply to all disputes under the statute, including
those involving grandparent visitation.
This Court should therefore apply the intent of the legislature
to give high deference to the rights and wishes of parents when a
dispute occurs between parents and a third party, such as a
grandparent in a grandparent visitation dispute when it reads the Act
as a whole. With that
deference an integral part of the statute, there is no basis for a
constitutional challenge to the law.
concept has been upheld in the Court of Appeals of Wisconsin in the
matter of In re the Paternity of Roger D H v Virginia
O., 2002 WL 59233 (Wis App, January 17, 2002).
In Roger D H, the mother argued that
Troxel makes it clear that a statute that fails to
expressly include a deference to a parent=s
decision making does not meet the constitutional safeguards of the 14th
Amendment. Her argument amounted to an assertion that Wisconsin
statute (' 767.245) was facially unconstitutional under Troxel
because the statute does not require that courts give presumptive
weight to a fit parent=s
decision regarding non-parental visitation.
However, while Troxel does require that
courts recognize a presumption that fit parents act in the best
interests of their children, it provides no support for the claim that
a statute without an expressed presumption is facially
unconstitutional. To the
contrary, Troxel strongly suggests that courts
may read such a requirement into the statute to save it from facial
D H, at 758.
Wisconsin Court of Appeals went
on to distinguish the Troxel matter and stated:
these observations and conclusions, and despite the fact that the
Washington statute had no language suggesting that courts should give
weight to a fit parent=s decision, the United States Supreme Court did not find the Washington
statute facially unconstitutional.
Instead, the Troxel court opted to find
the particular application of the statute unconstitutional because the
trial court acted on a >slender
and because it used an impermissible presumption. Rather than give the
required presumptive weight to the parent=s
decision, the Washington trial court improperly presumed that
grandparent visitation was in the best interests of the children.
glean from Troxel two propositions relevant to
the issue before us. First, due process requires that courts apply a presumption
that a fit parent=s
decision regarding non-parental visitation is in the best interests of
a child. Second, a state
court may read this requirement into a non-parental visitation
statute, even when the statute is silent on the topic.
we hold that when applying Wisconsin statute '
767.245(3), circuit court=s must apply the presumption that a fit parent=s
decision regarding grandparent visitation is in the best interests of
a child. At the same time, we observe that this is only a presumption
and the circuit court is still obligated to make its own assessment of
the best interests of the child. See '
767.245(3)(f). What the due process clause does not tolerate a court giving
weight= to a fit parent=s determination but instead basing its decision on >mere
with the parent. Troxel 530 U.S. at 68-69.
DH, at 758.
the Michigan Court of Appeals in the instant case, the Wisconsin Court
of Appeals in Roger D H followed the
well-established rule favoring construction of statutes in a way that
avoids invading the province of the legislative branch and upholds
laws that are challenged constitutionally.
Other state appellate courts have done what the Michigan Court
of Appeals failed to do.
Supreme Court of Georgia, in Clark v Wade, 544
SE2d 99 (Ga 2001), held:
judicial responsibility requires us to consider the legislature=s intent in enacting the law and to construe the statute to give effect
to that intent when possible. This
role means that we must give a narrowing construction to a statute
when possible to save it from constitutional challenge, at 27.
Ex parte DW and JCW, (Unpublished) 2002 W.L. 193868
(February 8, 2002), a maternal grandmother petitioned for
grandparent visitation with her granddaughter who had been legally
adopted by her paternal grandparents. The trial court awarded her
grandparent visitation rights. The
adoptive parents appealed. The
Court of Civil Appeals reversed, finding that the statute providing
for natural grandparent visitation of an adoptee grandchild to be
Alabama Supreme Court granted leave to appeal and, as a matter of
first impression in that state, held that the Legislature had the
power to qualify rights of adopting parents by enacting statutes
allowing natural grandparents of an adoptee to petition for
post-adoption visitation rights in the context of intrafamily
adoptions. The adoptive parents relied upon Troxel
in support of their request to hold the Alabama grandparent visitation
its decision, the Supreme Court of Alabama stated:
considering the constitutionality of '
26-10A-30, we must remember that it is well established that this
court should be very reluctant to hold any act unconstitutional.
court went on to state:
construing a statute, the first rule is that the intent of the
Legislature should be effectuated. [citation omitted.] We must
consider it as a whole and must construe [the statute] reasonably so
as to harmonize all of its provisions.
was the clear intent of the Legislature in enacting '
26-10A-30 [grandparent visitation statute] to give the trial court the
authority to grant post adoption visitation rights to the natural
grandparents of the adoptee, when the adoptee is adopted by a family
member. The only reasonable conclusion is that the Legislature
intended to limit the rights of the adopting parents by allowing the
possibility of court ordered grandparent visitation over the
objections of the adopting parents.
Any other conclusion which failed to give an effect to ' 26-10A-30, in violation of this court=s duty to harmonize the statutory provision in order to give effect to
all parts of the statute. Ex parte DW and JCW, at 3.
Supreme Court of Appeals in West Virginia in State of West
Virginia ex rel. Brandon L. and Carol Jo L v Moats, 551
SE2d 674 (W Va 2001) held that the West Virginia grandparent
visitation act (West Virginia Code ' 48-2B-1-12 (1998)) by its terms did not violate the substantive due
process right of liberty extended to a parent in connection with
his/her right to exercise care, custody and control over his/her
child(ren) without undue interference from the state.
Court of Appeals of Louisiana in Galjour v Harris,
795 So2d 350 (La App 2001) also addressed a parent=s
contention that the grandparent visitation statute was
unconstitutional in a case where a brother, sister-in-law, and
maternal grandparents of a deceased mother sued the father for
visitation of a minor child. In
that case, the court denied the brother and sister-in-law visitation,
but granted visitation to the maternal grandparents. All of the
parties appealed. The appellate court held: (1) the civil code did not allow a
brother and sister-in-law to seek court-ordered visitation; (2) the
statute allowing grandparents visitation of grandchildren in limited
situations was constitutional; and (3) the trial court=s grant of visitation to grandparents was not an abuse of discretion.
parent in Galjour argued that the Louisiana
grandparent visitation statute (R.S. 9:344A) was unconstitutional
under both the United States, and Louisiana Constitutions, because it
impermissibly infringed upon a parent=s liberty interest in raising children without interference from third
parties. The parent cited
Troxel in support of his position.
However, the Louisiana appellate court disagreed.
As has become the prevailing pattern, that court distinguished Troxel
[parent] argues the holding of Troxel should be applied
here. We disagree. First,
unlike the Washington statute determined to have been unconstitutional
in Troxel, Louisiana=s
statute La. R.S. 9:344 is more narrowly drawn.
The Louisiana legislature has determined that in specified,
limited situations, i.e., where one parent dies, is interdicted, or
incarcerated, the parents of the deceased, interdicted, or
incarcerated party may have reasonable visitation rights
with the children provided the court finds said visitation to
be in the best interest of the child. Unlike the Washington statute, the Louisiana legislature
expressly limited the scope of La. R.S. 9:344 to the parents of the
deceased or absent parent. Additionally,
grant of visitation does not contemplate a significant intrusion upon
the child=s relationship with the other parent or interference with said parent=s
fundamental right to make child-rearing decisions.
Galjour, at 358 .
Stacy v Ross, 798 So2d 1275 (Miss 2001)
maternal grandparents brought an action against the custodial parents,
whose marriage was intact, seeking visitation with their grandson.
The trial court entered a grandparent visitation order and,
subsequently, held the parents in contempt for denying the
grandparents their court-ordered visitation.
The parents appealed the visitation and contempt orders.
On appeal, the Supreme Court of Mississippi held that their
grandparent visitation statute did not violate the parents=
due process rights. The
statute contained limitations permitting the state courts to grant
visitation to grandparents upon a finding that the grandparent has
established a viable relationship with the grandchild, that the
custodial parents have unreasonably denied grandparent visitation, and
that the visitation between the grandparent and the grandchild would
be in the best interests of the child.
grandparent visitation statute is not as broad in scope as that which
was upheld by the Supreme Court of Mississippi in that Michigan does
not permit grandparent visitation proceedings where there is an intact
Supreme Court of Mississippi, in distinguishing Troxel,
clearly delineated the difference between the overly broad Aany person at any time@ law which was unconstitutionally applied to the facts of the Washington
case from the more circumscribed Mississippi grandparent visitation
the >breathtakingly broad= >any
person= language in Washington=s statute, as characterized by Justice O=Connor writing for the majority in Troxel [citation
omitted], Mississippi Grandparents= Visitation Act expressly permits state courts to grant visitation to
grandparents. But before
doing so, the court must find that (1) the grandparent has established
a viable relationship with the grandchild, (2) that the custodial
parents have unreasonably denied grandparent visitation, and (3)
visitation between the grandparent and the grandchild would be in the
best interests of the child. Miss.
Code Ann. '
The Washington statute did not enumerate the same or even
similar limitations and, significantly, the Supreme Court
distinguished Mississippi as being among those states which expressly
provide limitations (that Mississippi courts may not award visitation
unless a parent has unreasonably denied visitation).
Troxel, 120 S.Ct. at 2062.
See also Zeman v Stanford, 789 So.2d at 803 (the
limitations imposed by this Court in its interpretation of '
93-16-3 clearly result in the Anarrower
lacking in Troxel).
The Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions as to care, custody,
and control of their children. Troxel, 120 S.Ct. at 2060.
This right, however, is not absolute,
Stacy, at 1279.
unique framing of the statute at issue in Troxel
from typical state grandparent visitation laws was also the key factor
in a case holding Ohio=s grandparent visitation statute constitutional.
Fischer v Wright (Unpublished) (2001 WL
1538495 (Ohio App. 5 Dist.) November 30, 2001).
The Ohio Court of Appeals held:
Second Assignment of Error expressed in Case No. 01-CA-003 argues that
the trial court=s ruling under Civ.R. 12(C) in dismissing the declaratory judgment
action was an error. There
are two prongs contained in such complaint to wit: (a)
constitutionality of R.C.'
3109.051B constitutional application thereof.
As this court in Epps v Epps (August 9, 2001) and
this opinion as stated heretofore have found such statute to be
facially constitutional, we find that the trial court was correct in
such decision. This
ruling would be in accordance with prior decisions in State ex.
rel. Dickman v Defenbacher (1955), 164 Ohio St. 142: ...
A regularly enacted statute is presumed to be constitutional, Fischer, (Unpublished) at 5.
her opinion concurring in part and dissenting in part, Justice Edwards
concurred with the majority that the plurality decision in Troxel
does not mandate a finding that O.R.C.
3109.051(B) unconstitutional on its face, even though R.C. 3109.051(B)
contains no expressed presumption that a fit parent=s decision regarding third party visitation is in a child=s
best interests. Justice Edwards wrote:
concur with the majority that the plurality decision in Troxel
v Granville (2000), 530 U.S. 57, does not require us to
find O.R.C. 3109.051(B) unconstitutional on its face even
though R.C. 3109.051(B) contains no presumption that a fit
decision regarding third-party visitation is in a child=s
best interests. The plurality in Troxel indicated that >...the
constitutionality of any standard for awarding visitation turns on the
specific manner in which the standard is applied...=
Therefore, the direction given to us by the plurality in Troxel
is to look at whether the application of the visitation statute to the
facts is constitutional. I
also concur with the majority that the application of O.R.C.
3109.051(B) is constitutional in the case sub judice.@
supra (Edwards concurring in part and dissenting in part, at 2 ).
Troxel, The Court of Appeals of Oregon applied
the best interests of the child standard and rejected a constitutional
challenge to Oregon=s grandparent visitation statute. In the Matter of the Marriage of Billy Sisson,
13 P3d 152 (Ore App 2000).
A grandparent visitation request was denied, but not based on
any alleged constitutional infirmity in the statute.
Rather, the court felt that grandparent visitation was not in
best interests on the facts presented.
If this Court reverses the Court of Appeals in the instant
case, trial courts will retain the option of denying grandparent
visitation requests based on a particular child=s best interests. No
grandparent visitation request can be considered automatic.
Supreme Court of Kansas in Skov v Wicker, 32 P3d
1122 (Kan 2001), held: (1) [T]he statute providing that
grandparents and stepparents may be granted visitation rights can be
harmonized and construed as constitutionally valid; and (2)
[G]reat-grandparents are not included within the term Agrandparents@ in child visitation statutes. A
grandparent visitation request was filed by both the grandparent and
the great-grandparent of the child.
Following a full analysis of Kansas law, the Skov
presume that a statute is constitutional and resolve doubts in favor
of its validity. This court not only has the authority, but also the
duty, to construe a statute in such a manner that it is constitutional
if this can be done within the apparent intent of the legislature in
passing the statute. State
v Martinez, 268 Kan. 21, Syl. 2, 988 P.2d 735 (1999).
court has on previous occasions seen fit to construe and limit
criminal statutes in such a way as to uphold their constitutionality
by reading judicial requirements into statutes which otherwise were
overbroad. 219 Kan. At
70, 547 P.2d 760. Here,
the intent of the legislature is to provide for grandparent visitation
in divorce actions. We
have the authority and duty to construe K.S.A.2000 Supp. 60- 1616(b)
to carry out that intent in a constitutional manner.
Skov court then went on to hold the Kansas
statute to be constitutional as it applied to the grandparent but not
as to the great-grandparent, who was not a named class of individuals
within their state grandparent visitation statute.
summary, the Troxel decision left much confusion
as to the validity and constitutionality of individual grandparent
visitation statutes around our country.
However, a careful and concise reading of the United States
Supreme Court decision clearly indicates that, although the Supreme
Court had the opportunity to do so, it did not find individual state
grandparent or non-parental visitation statutes to be facially
fact, the plurality opinion by Justice O=Connor addressed and only interpreted one overly broad statute which
person at any time@
without condition or restriction to seek court-ordered visitation with
another person=s child. Even faced with
such a broad statute, the Court invalidated the law only Aas
restrictions similar to those included in the Michigan statute (i.e.
divorce, legal separation, death of a parent, child placed out of the
home of a parent, etc.) the United States Supreme Court in Troxel
held that, as applied to the facts of Troxel
only, the Aany person at any time@ statute was unconstitutional. Washington=s
much more restrictive grandparent visitation statute was not ruled
unconstitutional and remains intact today. The
Michigan Court of Appeals majority in the instant case relied
incorrectly on its mistaken belief that:
put, if a judge in Washington cannot constitutionally be vested with
the discretion to grant visitation to a non-parent based upon a
finding that it is in the child=s
best interests to do so, then a judge in Michigan cannot be obligated
under statute to do so based upon the same finding, DeRose,
at 643 NW2d 263.
is simply untrue that a judge in the state of Washington is denied the
discretion to grant visitation to a grandparent based on a finding
that it is in the child=s best interests. That
right still remains, following Troxel, in the
state of Washington as it does in states which include, but are not
limited to: Alabama, California, Indiana, Kansas, Louisiana, Maine,
Massachusetts, Mississippi, Missouri, New York, Ohio, Oregon, Texas,
West Virginia, and Wisconsin. Most
other states have not been called on to determine the
constitutionality of their respective grandparent visitation statutes.
But, when, and if they are, a careful reading of Troxel
will not support a finding that their laws are unconstitutional per
is not to say, however, that certain, poorly drafted statutes, should
not have been held unconstitutional in their respective states.
For example, the Supreme Court of the state of Illinois held
their grandparent visitation statute unconstitutional per se.
Wickham v. Byrne, 199 Ill2d 309, 769 NE2d 1 (April,
2002), which invalidated that state=s
grandparent visitation law. Their
law is easily distinguished from Michigan=s
grandparent visitation statute, because of the way the Child Custody
Act is drafted, compared to the Illinois statute.
fundamental due process safeguards that are absent from the Illinois
statute are, undoubtedly present in Michigan=s
grandparent visitation statute. The
Supreme Court of Massachusetts, quoting from the Troxel
decision, on which the Illinois Court relied, stated:
clearly emerges from the plurality decision in Troxel,
with respect to due process, are the following principles:
reaffirmation that parent=s
liberty interest in child rearing is indeed fundamental, and is
certainly fundamental in this context,
any third party should not be permitted to seek visitation,
in determining whether grandparent visitation should occur,
there exists a presumption that a fit parent will act in the best
interest of his or her child...and the decision of a fit parent
concerning grandparent visitation is entitled to considerable
in determining whether grandparent visitation should occur, the
potential impact to the parent-child relationship should be
Asection 607(b)(1) of the Illinois statute exposes the decision of a fit
parent to the unfettered value judgement of a judge and the intrusive
micro-managing of the state,@ Wickham v. Byrne,199 Ill2d 309, at 320, Michigan=s
grandparent statute shields fit parents from such obtrusive state
action. By providing for
the necessary presumption within Michigan=s
Child Custody Act, the considerable deference requirement mandated by Troxel
Child Custody Act of Michigan states, AIf
the child custody dispute is between the parent or parents and an
agency or a third person, the court shall presume that the best
interests of the child are served by awarding custody to the parent or
parents, unless the contrary is established by clear and convincing
MCL 722.25(1) It is undisputed, therefore,
that in the state of Michigan, the burden is on the third
party to show that the presumption of awarding custody to the
parent or parents is misplaced. Furthermore,
the burden is highBthat
of clear and convincing evidence.
Whether or not the terms, Acustody@ and Avisitation@ may be interchanged in this instance
is clear: AWhile
the [Child Custody] act focuses on custody disputes, there can be
little doubt that the act was intended to control visitation
privileges as well.@
Stevenson v. Stevenson, 254 NW2d 337, 338 (1977).
the Michigan statute, which clearly gives deference to a fit parent=s decision, should not fall victim to the same fate of the Illinois
statute, which lacked this necessary component. As long as this Court follows the well settled principles of
statutory construction and interpretation, Michigan=s
grandparent statute should be held constitutional, and the Court of
Appeals decision should be reversed.
Those two principles are: 1.
That statutes facing a constitutional challenge are presumed
constitutional, and 2. State
courts may read into their statutes the presumption that fit parents
act in the best interests of their children in order to save those
statutes from invalidation.
the Court of Appeals majority opinion in the instant case cannot be
legally or logically reconciled with a prior published decision of
that court authored by a well-respected jurist, the Hon. Hilda R.
Gage. On October 23, 2001
(after the instant case was argued), another panel of the Court of
Appeals (Judges Griffin, Gage, and Meter) held that even in cases
where third parties challenge parents for custody of their children,
interests of the child@
test remains constitutionally valid provided that a strong presumption
is granted to the parents. Heltzel v Heltzel, 248 Mich App1; 638
NW2d 123(2001). After
acknowledging that the Legislature had properly made the child=s best interest (as defined in MCL 722.23) the paramount
legal test (citing Eldred v Ziny, 246 Mich App
142, 150; 631 NW2d 48 (2001)), the Heltzel
panel held at NW2d at 138:
hold that, to properly recognize the fundamental constitutional nature
of the parental liberty interest while at the same time maintaining
the statutory focus on the decisive nature of an involved child's best
interests, custody of a child should be awarded to a third-party
custodian instead of the child's natural parent only when the third
person proves that all relevant factors, including the existence of an
established custodial environment and all legislatively mandated best
interest concerns within '
3, taken together clearly and convincingly demonstrate that the
child's best interests require placement with the third person.
the Abest interests of the child@ legal standard, as defined in MCL 722.23, is
constitutionally adequate to serve as the legal standard for disputes
between parents and third parties on matters concerning custody, it is
logically and legally impossible for it to be constitutionally
inadequate as a legal standard in the much more narrow and focused
area of grandparent visitation. Stated
plainly, the majority opinion in the instant case cannot be logically
or legally reconciled with the well-reasoned opinion in Heltzel.
Under MCR 7.215(I), the Court of Appeals majority
in the instant case should have found itself bound by Heltzel
and refused to find the Abest
interests of the child@
test unconstitutional per se. Instead,
as in Heltzel, the majority in the instant case should
have endeavored to provide guidance to the trial court=s
in properly applying the existing statutory standard in a way that
would not run afoul of fundamental constitutional rights.
Court of Appeals erred in finding that the Abest
interests of the child@
legal standard provides inadequate guidance to the trial courts in
ruling on motions/actions for grandparenting time.
page 4 (slip opinion) of the Court of Appeals majority opinion in the
instant case, the panel incorrectly states that Michigan=s
grandparent visitation statute fails to provide adequate guidance to
our trial court=s in determining whether grandparent visitation should be granted.
In fact, the Abest interests of the child@ test used in the statute (and throughout the Child Custody Act of 1970,
of which the grandparent visitation statute is Section 7b) is one of
the most thoroughly and precisely defined legal standards in Michigan
law, both by virtue of the very detailed definition contained in
Section 3 of the Act (MCL 722.23) and the voluminous appellant case
law further defining that standard.
case law has consistently held that it is not necessary for the
grandparent visitation statute itself (MCL 722.27b) to include within
its own subsection a substantive legal standard or expressly stated
presumption when the necessary standard and presumption are already
located within the same Act. As
noted above, it is merely one part of an overall legislative scheme
known as the Child Custody Act of 1970 (MCL 722.21 et seq).
The Act as a whole addresses a full range of child-related
issues including custody disputes between parents, custody disputes
between parents and third parties, parenting time, and grandparent
visitation (now known as grandparenting time).
In each of these areas, subject to appropriate presumptions and
procedures, the substantive legal standard remains the Abest interests of the child@ as defined in Section 3 of the Act.
its very terms, MCL 722.23 refers to the Aparties
not the Acompeting parents.@ The original language of
the Act did refer only to the Aparents,@
but was amended by the Legislature to include all Aparties,@ evidencing a clear legislative intent to apply the statutory Abest
interests@ definition to all forms of custody and visitation disputes, including
grandparent visitation requests.
Never before has a Michigan appellate court declared this
elaborate and well-defined Abest
interests of the child@
legal standard constitutionally insufficient.
well-defined concept of Abest
interests of the child@
already contains within it sufficient guidance for the trial courts in
deciding grandparent visitation matters.
As noted above, not only is the statutory definition (MCL
722.23) expansive, but there are dozens of decisions from the Court of
Appeals and this Court addressing and affirming virtually every nuance
of the Abest
interests@ test. If that weren=t
enough, the State Court Administrative Office (SCAO), through its
Friend of the Court Bureau (FOCB), has published at least three
substantial bodies of work adding even greater detail and guidance to
March of 1991, the SCAO adopted and published the Michigan Custody
Investigation Model. If the existing statute and case law were not guidance
enough, we now have a comprehensive manual that tracks each of the Abest
interests@ factors contained in MCL 722.23 and describes how they are to be
applied. In addition,
applying the same substantive Abest
interests of the child@
standard, we now also have both a Michigan Parenting Time and Change
of Domicile Evaluation Model and a Michigan Parenting Time Guideline.
Both were published by the SCAO and the latter is available for
download in the Public Programs section of this Court=s
best interests factors contained in MCL 722.23 are so comprehensive
and so detailed (especially when coupled with case law interpretation
and the SCAO manuals) that any factor this court would have the trial
consider in evaluating grandparent visitation requests could easily be
accommodated withing the language and structure of the existing
statute. It was simply
incorrect for the majority in the Court of Appeals DeRose
decision to conclude that the law lacked guidelines for the Court to
utilize when deciding grandparent visitation cases.
Therefore, it was clearly erroneous to declare the statute
only is the Court of Appeals majority opinion in the instant case
based on a misreading of the constitutional issues presented by
grandparent visitation, especially in the context of a limited statute
such as Michigan=s, it is also based on a misreading of the very authority upon which the
opinion is based. The
U.S. Supreme Court=s
decision in Troxel v Granville received
much attention from the popular press when it was released.
Not surprisingly, almost every media outlet got it entirely
wrong. While the parties
seeking visitation in Troxel just happened to be
grandparents, they filed their request for court ordered visitation
under a general third-party visitation statute that bears no
resemblance to any existing grandparent visitation statute, including
As such, Troxel was not a decision addressing the
constitutional merits of grandparent visitation.
It was nothing more than a reaffirmation of a parent=s constitutionally important, but not absolute, role in
decision-making for his/her children.
that context, it is sadly not surprising that the panel below
incorrectly stated that Washington=s
grandparent visitation statute had been invalidated in Troxel.
In fact, the limited Washington grandparent visitation statute,
like nearly all limited grandparent visitation statutes, remains
constitutionally valid and in effect.
problematic is the panel=s
failure to recognize that its decision is logically and legally
inconsistent with the prior published decision in Heltzel
v Heltzel. Although
Heltzel was released after the instant case was
argued, approximately three months passed between the release of Heltzel
and the release of the opinion in the instant case.
Not only was the panel below bound by Heltzel,
but the compelling logic of Judge Gage=s opinion in Heltzel should have influenced the
panel to revisit its willingness to so easily usurp legislative
power and declare a statute facially invalid.
The reality of Afamily@ has changed significantly in recent decades. The concept of
parental autonomy, grounded in the assumption that parents
raise their own children in nuclear families, is no longer to be taken
for granted. According almost absolute deference to parental rights is
now less compelling because the traditional nuclear family has eroded.
Grandparent visitation laws did not create that erosion. More varied
and complicated family structures have arisen because of divorce,
decisions not to marry, single-parent families, remarriages and
step-families, parents who abandon their children to grandparents, and
children being raised by third parties because parents are unable to
care for their own children. It would be a significant disservice to
the children of our state, who look at their families through their
own eyes, to ignore their reality of what family is to them. We must
recognize that in some families the parents are not necessarily
legally related to the same people as their children.
woman who divorces her husband or a mother of children whose father
has died may no longer be related to the grandparents of her children,
but the children still have a connection through bloodline and
heritage to their grandparents. They are family to that child.
visitation laws conditioned on visitation being in the child=s best interest express a fundamental liberty interest to
both grandparent and grandchild. Should a parent, only one in the
chain of three generations, be given constitutional sanction to amputate
the family unit of the child? Fortunately the United States Supreme
Court said NO! By holding
that these cases must be decided on a Acase by case basis,@ the majority of the Supreme Court held that the millions of
grandparents and grandchildren who have been reunited because of laws
protecting their rights, will not be threatened with amputation by
critics who claim that these laws were unconstitutional.
summary, this Court should reverse the Court of Appeals majority opinion
in this matter. Michigan=s
grandparent visitation statute is narrowly drawn to accomplish a
legitimate state purpose. Furthermore,
the statute, when read as a part of the overall Child Custody Act,
provided adequate guidance to the trial courts along with the requisite
deference to parental decision-making. It is not necessary to completely
obliterate the rights of children to maintain contact with those they
love in order to properly recognize the rights of parents.
Offices of Richard S. Victor, PLLC
August 12, 2003
S. Victor (P24827)
R. Victor (P64703)
Bassett (P33231), Of Counsel
for Third-Party Plaintiff-Appellant