Sunday, October 21, 2007


Issues: Grandparent visitation; Court:

Michigan Court of Appeals (Published) The case originated in Wayne County Case Name: Brinkley v. Brinkley 10/16/2007 e-Journal Number: 37353 Judge(s): Per Curiam - Wilder, Borrello, and Beckering

On remand from the Supreme Court sending the case back to the Michigan Court of Appeals “for plenary consideration of the grandparents-maternal grandparents’ constitutional issue,” the court held MCL 722.27b(5) does not unconstitutionally violate the defendants-grandparents’ due process or equal protection rights.
722.27b Order for grandparenting time; circumstances; acknowledgment of parentage; commencement of action; procedures; affidavit; notice; opposing affidavit; hearing; basis for entry of order; condition; record; court mediation; frequency of filing complaint or motion seeking order; attorney fees; order prohibiting change of domicile of grandchild; effect of entry of order; modifying or terminating order. (5).
If 2 fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court shall dismiss a complaint or motion seeking an order for grandparenting time filed under subsection (3).

This subsection does not apply if 1 of the fit parents is a stepparent who adopted a child under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandparent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or whose parental rights have been terminated.

The Grandparents, the Bacas, had visited their grand-children frequently , taken them on vacations and bought toys after the divorce.

Following a divorce, the defendant-mother became estranged from defendants and denied them further contact with the children. She/childrens mother persuaded the plaintiff-father to do the same.

The Bocas the maternal grandparents argued MCL 722.27b(5) , the state Law that controls grandparent visitation rights, denies them their substantive due process right to maintain a familial relationship, which is in their grandchildren’s best interests.

The Bocas/Defendants contended they have a fundamental right to maintain a relationship with their grandchildren and, therefore, the strict scrutiny test applies.

The court held MCL 722.27b(5) is rationally related to the legitimate goal of protecting and encouraging the grandparent-grandchild relationship without infringing on the parents’ fundamental right to manage the upbringing of their children.

MCL 722.27b was amended to avoid the constitutional deficiencies found in the previous statute. As amended, the statute affords broad deference to parents by limiting the circumstances in which grandparents may seek visitation, by imposing the burden of proof on grandparents, and by requiring dismissal of petitions for grandparenting time when two fit parents jointly oppose visitation.

Subject to specific exceptions, MCL 722.27b grants absolute deference to parents who have an intact marriage or domestic relationship, and to fit parents who unanimously oppose visitation. The statute grants qualified deference in four circumstances.

None of the circumstances are implicated where a child’s natural parents are both fit and both oppose grandparent visitation as in this case.

The issues decided in this case were: Whether MCL 722.27b(5) violates the defendants-maternal grandparents’ constitutional rights to due process and equal protection; Substantive due process challenge to the constitutionality of MCL 722.27b(5); Morreale v. Department of Cmty. Health; Keenan v. Dawson; DeRose v. DeRose; Troxel v. Granville; Tolksdorf v. Griffith; W. A. Foote Mem’l Hosp. v. City of Jackson; Frame v. Nehls; Whether defendants have a fundamental right to maintain a relationship with their grandchildren; Johnson v. White; In re Morton; In re Clausen; Whether the strict scrutiny or rational test applied; Whether MCL 722.27b(5) deprives defendants of procedural due process; Hinky Dinky Supermarket, Inc. v. Department of Cmty. Health; Morales v. Michigan Parole Bd. In this situation, MCL 722.27b(5) was rationally related to the legitimate purpose of preserving the fit parents’ fundamental right in managing the care, custody, and control of their children. -

Terry Bankert or 21104