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A Better Partnership
December 28, 2015

Grandparenting visitation time should only be awarded upon a clear denial of visitation by the custodial parent, says the COA

In Falconer v. Stamps, No. 323392, the Michigan Court of Appeals held that assessing grandparenting visitation time was improper when a mother received sole custody of her child just moments before the trial court granted grandparenting time because the mother had not yet denied visitation rights to the grandparent.  In addition, the court held that, absent expert testimony, awarding extensive grandparenting visitation time was improper.
 
This case involved a custody dispute between Kristen Falconer, a child’s biological mother, Chad Stamps, the child’s biological father, and Donna Weddington, the child’s paternal grandmother.  Weddington had provided the child with an established custodial environment for the child’s entire life, while Falconer and Stamps had only sporadically been a part of the child’s life.  In December 2013, after reforming her life and successfully attending supervised visitation for a number of months, Falconer filed a complaint for sole physical and legal custody of the child.  Weddington intervened in the proceeding, arguing that it was not in the child’s best interest to grant custody to Falconer.  After considering extensive evidence presented by all three parties, the trial court concluded that Weddington had failed to prove by clear and convincing evidence that placement with Falconer was not in the child’s best interest.  The court then went on to sua sponte consider the issue of grandparenting visitation time. Ultimately, the trial court granted Falconer sole physical and legal custody and granted Weddington standard parenting time for a noncustodial parent.  Falconer appealed.
 
The Court of Appeals concluded that the issue of grandparenting visitation was not properly before the court because Falconer had not yet denied Weddington visitation time—a prerequisite for asserting grandparenting visitation rights—because Falconer had only just obtained full custody of the child.  Even if the issue had been properly before the court, the court concluded that the best interest factors weighed strongly against grandparenting visitation because Weddington’s continued involvement in the child’s life was potentially detrimental to the child’s successful transition to Falconer’s home.  Finally, the court concluded that the amount of grandparenting time was excessive because the trial court had failed to consider any expert testimony that supported the conclusion that extensive grandparenting time was necessary to reduce the risk of harm to the child.  Accordingly, the court vacated the portion of the trial court’s order granting grandparenting visitation, but otherwise affirmed the custody order. 

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