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A Better Partnership
September 27, 2013

COA rules that guardians are not entitled to the “fit parent” presumption when they deny visitation to a grandparent.

In Book-Gilbert v. Greenleaf, the Michigan Court of Appeals read the plain language of the Michigan grandparent visitation statute to say that a guardian’s decision to deny visitation to a grandparent is not entitled to the same presumption as a “fit parent’s” decision to deny visitation.

Ashlee Book-Gilbert died when her child was three years old.  The child’s father was homeless and later incarcerated.  The child was placed in the care of Angela Tyndall, a relative of the deceased mother.  The paternal grandmother, Heather McCallister, was able to visit with the child for several months after the placement.  Tyndall was later appointed as guardian.  After the appointment, she refused to allow McCallister any further visitation.  In response, McCallister filed a motion for grandparent visitation, and after several evidentiary hearings, the trial court denied the motion.  It ruled that although Tyndall was only a guardian, she was entitled to the fit parent presumption in the grandparent visitation statute.  The court of appeals granted McCallister’s delayed application for leave to appeal.

The Michigan grandparent visitation statute, MCL § 722.27b et seq., states in part that if a “fit parent” denies grandparenting time, the court should presume that the decision “does not create a substantial risk of harm to the child’s mental, physical, or emotional health.”  McCallister argued that this presumption should not apply to Tyndall because she was only a guardian not a parent.  The court agreed.  It explained that a different section of the statute contemplates that the child could be placed with a guardian, yet when the legislature drafted the presumption provision, it specifically stated the presumption would apply to “parents.”  It did not say “guardians.”  Tyndall argued that the Michigan guardian statute, MCL 700.5215, allows guardians to essentially “step into the shoes” of the parent, and that this principle should carry over to the grandparenting time statute.  The court rejected this approach for three reasons.  First, it held that the guardian statute and grandparenting time statue address different subject matter and therefore could not be read together.  Second, it explained that because parents have a fundamental right in the care, custody, and control of their children, parents have a legally elevated status over guardians, and the fit parent presumption is a reflection of these principles.  Third, it reasoned that parents may have a prior relationship with grandparents that could inform the decision of whether to allow visitation, whereas guardians may not have such a prior relationship and thus may be unable to make that same informed choice.

The court of appeals remanded the case for the trial court to make additional findings and credibility determinations in light of the court’s opinion.

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