Sunday, October 20, 2013
GRANDPARENT VISITATION STOPPED BY GUARDIAN WAS WRONG.Flint Divorce Attorney Terry Bankert 810-235-1970
#TERRY TALKS “Ideas worth sharing “
#GUARDIANS DENIAL OF GRANDPARENT VISITATION WRONG!
Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group WWW.terrytalks.com
Here the “Plaintiff alleges that the trial court erred by allowing defendant, the guardian, to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation. We
(Michigan Court of Appeals) agree
1. Motion for grandparent visitation (MCL 722.27b);
2. Whether the trial court properly allowed the intervening defendant (the guardian) to utilize the "fit parent presumption" of MCL 722.27b(4)(b) to deny grandparent visitation; Whitman v. City of Burton; In re Receivership of 11910 S. Francis Rd.; Johnson v. Recca; People v. Peltola; In re Hurd-Marvin Drain; Michigan Basic Prop. Ins. Ass'n v. Office of Fin. & Ins. Regulation; Maple Grove Twp. v. Misteguay Creek Intercounty Drain Bd.; Miller-Davis Co. v. Ahrens Constr., Inc.;
3. MCL 722.27b(1)(e);
4. Whether the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b); MCL 700.5215;In re Beck; University Ctr., Inc. v. Ann Arbor Pub. Schs.; Hunter v. Hunter
Court: Michigan Court of Appeals (Published)
FOR PUBLICATION,September 26, 2013 ,9:00 a.m. 
Case Name: Book-Gilbert v. Greenleaf ,No. 308755 ,
PRINCIPAL SOURCE e-Journal Number: 55461
MICHIGAN COURT OF APPEALS Judge(s): Per Curiam – Fort Hood, Fitzgerald, and Ronayne Krause
THE LOCAL,LOWER,TRIAL COURT ERRED IN ALLOWING INTERVENING GUARDIAN TO STEP INTO A FIT PARENTS PRESUMPTION WHEN DECIDING ON GRANDPARENT VISITATION.
The court held that the trial court erred by allowing intervening defendant-Tyndall (the guardian and relative of the minor child's deceased mother) to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation to intervening plaintiff-McCallister and by allowing a guardian to "step into the shoes" of a fit parent for purposes of MCL 722.27b(4)(b)."
MICHIGAN COURT OF APPEALS REVERSES LOWER COURT/TRIAL COURT ORDER AND DENY’S THE GRANDPARENT MOTION FOR VISITATION
Thus, the court reversed the family court order [...AND...] denying plaintiff's (the minor child's paternal grandmother) motion for grandparent visitation, and remanded. "
THE TRIAL COURT RELIED ON MCL 722.27b(4)9b)
The trial court held that MCL 722.27b(4)(b) provided that deference was to be given to the decision of a fit parent to deny grandparenting time, and it was presumed that the denial of parenting time "does not create a substantial risk of harm to the child's mental, physical, or emotional health.""
THE LOWER COURT DID NOT DIFFERENTIATE BETWEEN A GUARDIAN AND PARENT
It acknowledged that defendant was not a parent, but a guardian. Nonetheless, it held that defendant had the right to make decisions as a fit parent, the right to deny grandparenting time, and plaintiff failed to overcome the presumption."
THE LEGISLATURE DID NOT INCLUDE GUARDIAN IN THE LAW
The court held that the trial court's holding was contrary to the plain language of MCL 722.27b(4)(b), which grants "fit parents" a presumption as to the denial of grandparenting time. The Legislature could have afforded a presumption to "custodians" or "guardians" of a grandchild, but did not include such language. "
GUARDIANS DO NOT GET THE SAME DEFERENCE A PARENT WOULD.
The court cannot read into a statute what the Legislature did not include, and permitting guardians or custodians to derive the benefit of the fit parent presumption would require it to rewrite the statute"
Defendant contended that a guardianship encompasses parental responsibilities, and thus, the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b).
The court held that despite the definition of guardian found in MCL 700.5215, there was no indication that the definition may be incorporated into the provisions of MCL 722.27b(4)(b).
"The statutes fail to address the same subject matter, and they cannot be read in pari materia." More importantly, the court held that there are distinct differences between a natural parent and a guardian such that it would be inappropriate to read the term guardian into the text of the fit parent presumption of MCL 722.27b(4)(b) in the absence of a legislative provision.
PARENTS HAVE A FUNDAMENTAL LIBERTY INTEREST GUARDIANS DO NOT
"Specifically, parents have a fundamental liberty interest in the care, custody, and control of their children.""
"The presumption to a fit parent reflects the elevated status and rights a parent has to a minor child..
" Further, a fit parent has a relationship to the grandparents "such that an informed decision may be made regarding the propriety of grandparent visitation. "
On the contrary, a guardian or custodian of a grandchild may or may not have a relationship with the grandparent, and, in the absence of a relationship, could not make an informed decision regarding the risk of harm to a child during visitation."
PRINCIPAL SOURCE e-Journal Number: 55461 Mostly the incited text
STATE OF MICHIGAN COURT OF APPEALS ,ASHLEE BOOK-GILBERT, Plaintiff,
andHEATHER MCCALLISTER, Intervening-Plaintiff-Appellant, FOR PUBLICATION
September 26, 2013 ,9:00 a.m. ,JERRY RYAN GREENLEAF Defendant,
And ANGELA TYNDALL, Guardian of XXXXX, Minor,
TERRY BANKERT comments are in BLOCK HEADLINE or quoted [trb]
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