Custody & Grandparenting Time Issues Must Be Decided Separately | Speaker Law
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Custody & Grandparenting Time Issues Must Be Decided Separately

Posted on Wednesday, October 16, 2019

An award of grandparenting time requires reversal where the trial judge erroneously decided the grandparenting time issue during the child custody hearing, according to the Michigan Court of Appeals.

In Slocum v Floyd (Docket Nos. 338782 and 340242), the defendant mother was divorced from the plaintiff grandparents' son. The couple had two children together during the marriage. After the divorce, the plaintiff grandparents' son had primary physical custody of the children and both parents shared legal custody. The plaintiff grandparents' son later remarried but died in a motorcycle accident. After their son’s death, the plaintiff grandparents filed emergency petitions in Eaton County Probate Court seeking a temporary guardianship over the children. The Probate Court granted the petitions and appointed the plaintiff grandparents as temporary guardians.

On the day the temporary guardianships were set to expire, the plaintiffs filed a third-party custody action in Eaton County Circuit Court, relying on their status as guardians to give them standing to seek custody of their grandchildren. The Circuit Court filing stayed the Probate Court case. The Circuit Court ultimately awarded the defendant mother sole physical and legal custody of the children and awarded the plaintiff grandparents' grandparenting time.

The defendant mother appealed, arguing the trial court improperly awarded the plaintiff grandparents grandparenting time without following the procedure set forth in the grandparenting time statute, MCL 722.27b, to first determine whether the plaintiff grandparents were entitled to grandparenting time.

The Court of Appeals agreed with the defendant mother's argument. In its opinion, the panel noted this case was similar to the published ruling in Falconer v Stamps, 313 Mich App 598 (2015). “Like the trial court in Falconer, the trial court here conflated what should have been two separate and distinct actions. Therefore, we reverse the trial court’s award of grandparenting time to plaintiffs and remand for further proceedings.”

Judges Thomas C. Cameron, Patrick M. Meter and Stephen L. Borrello were on the appellate panel that issued the unpublished opinion.


Falconer involved a custody battle among the plaintiff-mother, the defendant-father and the child’s paternal grandmother. The grandmother had filed a petition in probate court to be appointed as the full guardian of the child. The grandmother was awarded a full guardianship. After the parents returned to Michigan, the plaintiff-mother moved to terminate the guardianship. Competing complaints for temporary custody were later filed by both the plaintiff and the defendant.

The trial court in Falconer recognized there is a presumption that placement with the natural parent is in the child’s best interests, absent clear and convincing evidence otherwise. The trial court evaluated the best interests factors in MCL 722.23 and awarded the plaintiff-mother sole physical and legal custody of the child. The grandmother was awarded grandparenting time after the trial court addressed the factors in MCL 722.27b(6). The plaintiff-mother appealed the grandparenting time decision.

On appeal, the Court of Appeals in Falconer noted the case involved a custody dispute between the grandmother and a parent. It vacated that portion of the trial court’s order that granted grandparenting time, finding the issue of grandparent visitation was not properly before the trial court. The Falconer panel said, “Here, the circuit court conflated what should have been two separate and distinct actions – the custody determination and the grandparenting-time determination. It first concluded that plaintiff was entitled to custody of the child based on Intervener’s failure to show by clear and convincing evidence that the child’s best interests were not served by placing the child with plaintiff. However, the circuit court sua sponte continued that ‘there are other issues the Court has to decide. Those other issues concern grandparent visitation.’ It then plowed ahead and addressed the factors in MCL 722.27b(6) ….”

In its analysis, the Falconer Court discussed the history of the grandparenting-time statute, MCL 722.27b, and the interplay and differences between a custody decision and a grandparenting-time decision, particularly with respect to the presumption of fitness of the parent. The Falconer panel wrote: “An action for grandparenting time, unlike custody, is simply a different cause of action altogether. Here, in granting plaintiff full physical and legal custody, the circuit court methodically considered the child’s best interests under MCL 722.23 and concluded that [the grandmother] failed to meet her burden of showing by clear and convincing evidence that the child’s best interests would have been served by placing the child in [her] care. Necessarily included in that decision was the circuit court’s tacit finding that plaintiff was a fit parent. Whereas a custody case involves an inquiry as to parental fitness, a proceeding under the grandparent visitation statute presumes parental fitness. Absent a challenge to the circuit court’s custody decision, it is presumed that plaintiff is a fit parent and there is a presumption that fit parents act in the best interests of their children.”

In conclusion, the Falconer Court held the trial court should not have decided the grandparenting-time issue at the same time as the custody issue, reasoning that a request for grandparenting time “is not automatically included in a third-party request for custody.” As a result, the Court of Appeals vacated the portion of the trial court’s order awarding grandparenting time and ruled the trial court could not consider such a request until the grandmother brought a separate motion under MCL 722.27b(3).

Therefore, similar to Falconer, “[w]e … conclude that the circuit court in this case erred when it awarded plaintiffs grandparenting time after determining that defendant should receive full custody, without plaintiffs having first moved for grandparenting time under MCL 722.27b and meeting the requirements of that statute,” the Court of Appeals held in Slocum.

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