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A Better Partnership
October 15, 2015

COA: Order regarding grandparenting time is a final judgment and therefore appealable by right

In the consolidated appeal of Varran ex rel Varran  v. Granneman, Nos. 321866; 322437, on order from the Michigan Supreme Court, the Michigan Court of Appeals addressed the issue of whether an order regarding grandparenting time affects custody of a child under MCR 7.202(6)(a)(iii), or is otherwise appealable by right under MCR 7.203(A).  The Court held that the order in this case was a “final judgment” under MCL 7.202(6)(a)(iii) and, therefore, appealable by right.  In turn, the Court took jurisdiction over the appeals and addressed the defendant’s claims, concluding that the lower court did not err in granting an order of grandparenting time.   
 
Plaintiff-mother, now deceased, and defendant-father had a child (“A”) in 2002.  Over the course of approximately ten years, A lived primarily with his grandparents and visited the defendant on a varying schedule until the summer of 2012.  At that time, A began living with the defendant and visited his grandparents every weekend.  Eventually, the defendant informed the grandparents that their contact with A would only be under his supervision.  In response, the grandparents, as intervening petitioners in plaintiff’s child custody dispute, filed a motion for grandparenting time in June 2013.  The trial court issued an opinion and order granting grandparenting time finding that it was in the best interest of the child under MCL 722.27b.  The defendant then filed an appeal from the trial court’s order and opinion; the Court of Appeals dismissed both appeals and, on remand, the Michigan Supreme Court directed the Court of Appeals to address the issues in this consolidated appeal.
 
The Court of Appeals analyzed whether the order regarding grandparenting time was a “final judgment” or a “final order” under MCR 7.202(6)(a)(i) or MCR 7.202(6)(a)(iii).  Under MCR7.202(6)(a)(i), the Court held that the order was not a “final judgment” or “final order” because the Rule defines these terms as “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties.”  The Court opined that because the Rule uses “the” it only contemplates one order in a civil action; in this case that order was a 2004 consent order regarding custody of A, not the order regarding grandparenting time.  Next, the Court concluded that where a parent has legal custody of a child, an order regarding grandparenting time is a postjudgment order affecting the custody of the child under MCL 7.202(6)(a)(iii) and, therefore, a “final judgment” or “final order.”  The Court reasoned that because the order overrides a parent’s legal decision to deny grandparenting time, it interferes with a parent’s fundamental right to make decisions regarding the wellbeing of the child, thus “affecting the custody of the child”.  In light of this conclusion, the Court took jurisdiction over the defendant’s claims and addressed his arguments.
 
The defendant argued that 1) the grandparenting time statute was unconstitutional; 2) the trial court lacked jurisdiction over the grandparents motion; 3) the trial court erred in its interpretation of MCL 722.27b; 4) when the trial court found the expert witness’s testimony unreliable it erred when it considered the statements A made to the expert as evidence; and 5) the trial court’s finding that there was a substantial risk of harm to A if grandparenting time was denied was against the great weight of the evidence.  The Court of Appeals disagreed with the defendant on all claims and affirmed the trial court’s order granting grandparenting time.
 
The dissent in this case and concluded that the defendant was not entitled to appeal, as of right, the trial court’s decision, but rather was required to file an application for leave to appeal.  He therefore would dismiss the defendant’s claim for lack of jurisdiction under MCR 7.203(A).

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