By Lee Dryden
BridgeTower Media Newswires
DETROIT - In a battle over grandparenting time, a Michigan Court of Appeals panel ruled a Friend of the Court referee deprived a mother of the right to make decisions about her child.
In Zawilanski v. Marshall, the appeals court panel vacated a Livingston County Circuit Court's order denying the mother's objections to an interim order "awarding petitioner grandmother grandparenting time in an amount equivalent to the parenting time awarded a noncustodial parent."
The case was remanded to the trial court for further proceedings.
The referee deprived the plaintiff of the benefit of the fit-parent presumption and her "constitutionally protected right to make decisions about the care, custody, and management of her child," the opinion stated.
Originally issued as unpublished on July 12, the opinion was approved for publication on Aug. 25.
Plaintiff's attorney Kellie Maki Foster said she filed a request for publication on Aug. 2.
"This case will impact others because it provides further guidance to the courts and attorneys advising their clients about their respective rights and responsibilities in grandparenting time cases," said Foster, managing attorney of Legal Services of South Central Michigan in Lansing.
The grandmother's attorney, Kevin S. Gentry, did not respond to requests for comment.
The per curiam opinion was issued by Judges David H. Sawyer, Joel P. Hoekstra and Kurtis T. Wilder.
Background
In 2010, the plaintiff mother was seriously injured in an automobile accident when her child was 4 months old. She suffered a traumatic brain injury, was in a coma for three months and required intensive inpatient rehabilitation, according to the opinion.
During this time, the child's father had custody, but his mother - the child's grandmother and petitioner in this case - was the primary caregiver. The child's parents were never married.
"The record shows that a close bond developed between petitioner and the child," the opinion stated.
Starting in fall 2010, the grandmother took the child to weekly, one-hour visits to the rehabilitation center where the mother was recovering. A year later - after not seeing the child for several weeks - the mother sought custody, parenting time and child support.
"Following a Friend of the Court (FOC) investigation, the court awarded plaintiff and defendant joint physical and legal custody of the child, and plaintiff limited weekly parenting time, anticipating that it would increase as she continued to recover from her injuries. Four months later, plaintiff petitioned for an increase in parenting time, in accordance with the court's expectations," the opinion stated.
The child's father died in 2014. The plaintiff mother's parents told the petitioner grandmother that they were taking the child to live with the mother and they would be in touch. The petitioner filed a guardianship application less than a week later.
The plaintiff agreed to allow grandparenting time twice per week and one Friday per month in exchange for withdrawing the petition. A grandparenting time schedule was submitted to the FOC for investigation.
"The sole point of contention between petitioner and plaintiff is the amount of grandparenting time appropriate under the circumstances," the opinion stated.
The petitioner sought overnight visits recommended in the FOC report along with additional overnight visits.
"At the hearing on her petition before an FOC referee, petitioner did not dispute plaintiff's ability to care for the child, emphasizing instead the level of care that she had provided for the child for most of the child's life and the resulting bond that existed between them," the judges wrote. "Plaintiff's testimony stressed her ability to care for her children, and her concern that she reestablish herself in the role of mother and parental authority, and her fear that granting the amount of grandparenting time requested would effectively aid petitioner in undermining plaintiff's role."
Mentioning the grandmother's role as the one constant in the child's life, the referee recommended she "be given the parenting time that a normal non-custodial parent would receive" - alternate weekends, four nonconsecutive summer weeks and holiday and midweek "parenting time" in accordance with Livingston FOC guidelines.
"The referee explained that this schedule would not elevate petitioner to a legal guardian of the minor, but was a schedule that would 'best serve the child's best interests, and again, ensure continuation of a bond that's been established between the Petitioner and the child and will also allow the child to know his paternal family.'"
The trial court denied the plaintiff's objections, adopting the referee's grandparenting-time recommendation. A motion for reconsideration was denied.
Court weighs in
The plaintiff contended that the trial court erred by affirming an award of grandparenting time in an amount equivalent to the parenting time awarded a noncustodial parent over plaintiff's objections and without having overcome the fit-parent presumption of MCL 722.2b(4).
In this case, the panel wrote that the referee presumed that the plaintiff was a fit parent, but found that the petitioner had overcome the fit-parent presumption.
The opinion points out that evidence shows the plaintiff is a fit parent, a point conceded by the petitioner grandmother. It also cited the agreement between the parties to provide grandparenting time.
"It seems illogical to interpret the fact that the report did what it was supposed to do -recommend a grandparenting-time schedule at the request of both parties - as evidence that petitioner rebutted the fit-parent presumption," the opinion stated.
"Given that plaintiff was denying some, but not all, grandparenting time, in order to overcome the fit-parent presumption, petitioner had to show that plaintiff's denial of the amount of grandparenting time that exceeded her recommendation created a substantial risk of harm to the child. No evidence was presented on this question."
The court found that the referee "committed clear legal error, and the trial court confirmed that error, by failing to apply the fit-parent presumption to plaintiff's grandparenting-time decision, and by failing to require that petitioner rebut the presumption that plaintiff's recommended grandparenting time schedule would not create a substantial risk of harm to the minor."
"The referee deprived plaintiff of the benefit of the fit-parent presumption not only by ignoring the fact that plaintiff had agreed to grandparenting time and had offered petitioner a grandparenting-time schedule, but also by concluding against the great weight of the evidence that petitioner rebutted the fit-parent presumption," the opinion stated.
Attorney analysis
Foster said the case "raised an important legal principle addressing the tension between the right of parents to have clear decision-making authority on matters concerning their children and the desire of grandparents to have ongoing relationships with their grandchildren."
"This case carefully sets forth the framework to balance these interests without impermissibly interfering with the constitutionally protected rights of fit parents," she said.
"Our client was able to prevail because she is a fit parent who always acted in the best interest of her minor child. She unwaveringly agreed that there should be some grandparenting time and she presented an incredibly reasonable schedule. The petitioner in this case did not put forth any evidence to show that my client's proposed schedule would put the minor child at risk of mental, emotional, or physical harm - the standard that is required by the statute before a court can supplant its judgment over that of a fit parent."
Attorney Richard S. Victor, who helped write Michigan's statute regarding grandparenting time, said the offer of some grandparenting time in this case is important, "as in Michigan there is a provision that there needs to be a 'denial' of grandparenting time."
He said in the 2015 published Varran v. Granneman case, the Court of Appeals held that the "denial does not have to be a complete denial, but that it be a denial of what the usual and normal time the child had been used to had been."
In the Zawilanski case, Victor said it "should have been left to the trier of fact who heard the witness testimony and could weigh the credibility of the family situation in order to protect the best interests of the family and the child."
Foster agreed an important aspect of the case is that grandparenting time was offered.
"It was undisputed that there was a special bond that formed between the minor child and the paternal grandmother while my client recovered from a very serious car accident," she said. "My client always recognized that and wanted to foster that relationship - with some limitations."
With this case as a precedent, Foster said "a parent may appropriately agree that regular grandparent visitation is in the best interest of their child without conceding the legal benefit of the fit parent presumption."
"This decision also allows a fit parent to concede that grandparenting visits should happen without a trial court imposing a grandparenting schedule without deference to the parent," she added.
The case would impact future cases "when a court deprives a 'fit' biological parent the benefit of the fit-parent presumption and ignores the fact the parent agrees to grandparenting time offered to the grandparent," said Victor, who is of counsel to Hertz Schram PC in Bloomfield Hills.
"In this case, both the referee and trial judge committed that error," he said.
Published: Tue, Sep 06, 2016
