Can a Guardian Grandparent Deny Parenting Time?

At its core, family law is about moms, dads, and their children. But the reality is that Michigan families come in many more shapes and forms. When grandparents become legal guardians, particularly when Child Protective Services has been involved, it can confuse the issue and leave you wondering, can a guardian grandparent deny parenting time?

Parents Get Favor Over Third Parties in Family Court

Michigan law assumes that a child is best served by having a close relationship with both parents. In most cases, only a parent can file a custody lawsuit or request for parenting time. When a third party, like a grandparent, wants to claim custody of a child, they must go above and beyond the traditional best interest factors.  They must:

  • Have an adoptive placement with the child for at least 6 months
  • Be a relative of a child with unmarried parents whose sole custodial parent has died or gone missing
  • Be appointed a guardian by the juvenile court or probate court

Even in these cases, there is a strong presumption that the child is best served by awarding custody to the parent. To have custody awarded to the third party, he or she must show “that all relevant factors, including the existence of an established custodial environment and all legislatively mandated best interest concerns … taken together clearly and convincingly demonstrate that the child’s best interests require placement with the third person.” Heltzel v Heltzel.

Parents’ favor in family court stems from the U.S. Constitution. The ability to have and raise children is a fundamental right, most recently applied in the same-sex marriage decisions at the U.S. Supreme Court level. No constitutional right is absolute, and there are times when a parent’s authority to control his or her child need to be limited, or even terminated, but that is not a decision the courts take lightly.

Guardianships Used to Preserve Parental Rights

The balance of children’s welfare and parental rights come to full play in juvenile abuse and neglect petitions. These are the cases when the Michigan Department of Health and Human Services (DHHS) and Child Protective Services (CPS) intervene to protect the health and safety of children. The Juvenile Code provides the process for removing a child from unfit parents and terminating those parents’ rights when efforts to correct the problems fail.

But not every juvenile petition needs to result in termination. When a problem is persistent, but not serious enough for termination, the Juvenile Code allows the court to appoint a permanent legal guardian — often a relative — to take custody of the child and guide their upbringing without terminating the parent’s right. The guardian then has the authority to control important decisions about the child, including when and how visitation with the child’s parents occur.

Can a Guardian Grandparent Deny Parenting Time?

The interaction between guardian and parent was the subject of a recent published Michigan Court of Appeals decision, In re Ballard. In that case, the court had placed three children in the custody of their maternal grandmother as a permanent legal guardian without terminating the father’s rights. After years of visitation, the guardian grandparent and the father had a falling out and the parties headed to court to establish a formal parenting time schedule.

The trial court said it couldn’t help, saying that the guardian grandparent has “unfettered discretion” on the matters of custody. But the Court of Appeals disagreed. The Juvenile Code gives the family court judge jurisdiction over the guardianship and directed the court to consider, among a variety of other factors, “the appropriateness of parenting time.” The court said that even when there was no parenting time order in place before the guardianship began, this statute gives the court the authority to create a parenting time plan that protects a father’s parental rights and fosters the child’s welfare and relationships with their parents.

A guardianship gives a juvenile court the flexibility to protect children without automatically resorting to termination. But the recent opinion ensures that even when a guardian grandparent is in place, a parent still has the right to request parenting time in court.

Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She addresses custody and parenting time issues in court. If you need help protecting your visitation rights, contact Schmidt & Long to schedule a consultation.