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Grandma Named Children’s Legal Guardian: Father’s Visitation Request Must Be Considered

Posted on Thursday, May 10, 2018

Although there was no parenting-time order in place when a grandmother was named the legal guardian of her three grandchildren, the trial court must consider the biological father’s request for a parenting-time plan, in order to protect his parental rights and promote a relationship with him, the Michigan Court of Appeals has ruled.

In In re Ballard (Docket Nos. 339312, 339313 and 339314), the trial court had placed the three children in the custody of their maternal grandmother, as their legal guardian. Before doing so, the trial court did not terminate the biological father’s parental rights.

Over a period of several years, the father visited the children. But when the grandmother and the father had a falling out, the father asked the trial court to devise a parenting-time schedule. The trial ruled, however, that it could not establish a parenting-time schedule because the guardian-grandmother had “unfettered discretion” over visitation.

The Court of Appeals reversed in a published, binding decision. According to the appellate panel, the trial court had jurisdiction over the guardianship under the Juvenile Code – specifically MCL 712A.19a, which governs permanency planning hearings and juvenile guardianships created after child-protective proceedings have begun but parental rights have not been terminated.

In its decision, the Court of Appeals explained that MCL 712A.19a says that, if the trial court determines it is in the children’s best interests, a guardian can be appointed for the children and the guardianship may continue until the children are emancipated. The statute further provides that the trial court’s jurisdiction over a guardianship “shall continue” until released by a court order and the trial court “shall review” the guardianship annually and “may conduct additional reviews as the court considers necessary.”

According to the Court of Appeals, the Juvenile Code permits a trial court to consider an order of parenting time in the context of appointing a guardian under MCL 712A.19a(9)(c). Thus, the Court noted, there may be situations where a juvenile guardianship is ordered and the trial court also orders parenting time for a parent whose rights have not been terminated. In other words, during a juvenile guardianship, a parent may be exercising parenting time if it was previously ordered, and the trial court would have the authority to alter that parenting time during the guardianship if the circumstances necessitated trial court intervention.

“Because MCL 712A.19a(14) plainly envisions a trial court having an authoritative role with respect to parenting time during the course of a guardianship, we construe MCL 712A.19a(14) to provide a court with authority to order parenting time for a parent after a juvenile guardianship has been established, even though parenting time was not initially ordered when the guardianship commenced or at the time of the permanency planning hearing,” the Court of Appeals wrote. “The language in MCL 712A.19a(14) plainly reflects legislative intent to permit the issuance of parenting time orders in regard to an ongoing guardianship.”

Based on the foregoing, the Court of Appeals in Ballard held the trial court had authority to order parenting time for the father and remanded the matter, so the trial court could consider the father’s parenting-time motion.

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