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A Better Partnership
August 29, 2016

COA holds that petitioner failed to rebut the fit-parent presumption in grandparenting time petition

In Zawilanski v. Marshall, No. 330495, the Michigan Court of Appeals held that in order to overcome a fit-parent’s decision to deny grandparenting time, the petitioner must overcome a rebuttable presumption that the fit-parent’s denial does not create a substantial risk of harm to the minor-child’s mental, physical, or emotional health.  Here, the Court held the referee and trial court did not require the petitioner to rebut this presumption and thus committed clear legal error.
Plaintiff and defendant had a child and were never married.  In 2010, plaintiff was seriously injured in an auto accident and was in a coma for three months.  During this time, petitioner, the defendant’s mother and child’s grandmother, cared for the child and developed a close bond with the child.  During plaintiff’s recovery, the Friend of the Court (“FOC”) granted joint physical and legal custody to both parents.  In March 2014, the defendant passed away, and petitioner filed a guardianship application.  Plaintiff and the petitioner attempted to come to a grandparenting-time agreement, but ultimately could not agree on the amount of grandparenting time.  After an FOC investigation and report, petitioner was awarded parenting time that a normal non-custodial parent would receive.  Plaintiff objected to this conclusion.  The trial court dismissed plaintiff’s objections and she appealed.
The Court of Appeals found that “parents have a constitutionally protected right to make decisions about the care, custody, and management of their children.”  Under Michigan’s grandparent statute, MCL 722.27b, there is a rebuttable presumption that a fit parent’s decision regarding grandparenting time does not create a substantial risk of harm to the minor-child’s mental, physical or emotional health.  A grandparent must prove by a preponderance of the evidence that a denial of grandparenting time by the fit-parent creates this substantial risk.  If the presumption is not rebutted, the court must dismiss the grandparenting time petition.  Here, plaintiff denied some, but not all, of the requested grandparenting time requested, so petitioner needed to prove that this denial created a substantial risk to the minor-child.  The FOC referee and trial court did not require petitioner to overcome the presumption and therefore committed clear legal error.  Accordingly, the Court then vacated the trial court’s order and remanded the case for further proceedings. 

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