SHANNON NEAL BRINKLEY V LENA MARIE BRINKLEY
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STATE OF MICHIGAN
COURT OF APPEALS
SHANNON NEAL BRINKLEY
FOR PUBLICATION
October 16, 2007
9:05 a.m.
Plaintiff/Counter-DefendantAppellee,
v
No. 269725
Wayne Circuit Court
LC No. 98-840467-DM
LENA MARIE BRINKLEY,
Defendant/Counter-PlaintiffAppellee,
and
Official Reported Version
KENNETH BACA and PATRICIA BACA,
Appellants.
Before: Wilder, P.J., and Borrello and Beckering, JJ.
PER CURIAM.
In this grandparent visitation case, this Court originally vacated the trial court's order
denying appellants' motion for relief from an order denying their petition for grandparent
visitation and remanded the case to the trial court for consideration of the merits of appellants'
motion.1 In lieu of granting leave to appeal, our Supreme Court remanded the case to this Court
"for plenary consideration of the grandparents' constitutional issue." Brinkley v Brinkley, 477
Mich 1029 (2007). We hold that MCL 722.27b(5) does not violate appellants' due process or
equal protection rights. We remand to the trial court for consideration on the merits of any
remaining issues, consistent with this Court's July 18, 2006, order.
1
This Court held that the trial court clearly erred in ruling that the motion was barred by the
doctrine of res judicata. Brinkley v Brinkley, unpublished order of the Court of Appeals, entered
July 18, 2006 (Docket No. 269725).
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Plaintiff Shannon Brinkley and defendant Lena Brinkley are the parents of two minor
children. Appellants Kenneth and Patricia Baca are the children's maternal grandparents.
Shannon and Lena were divorced in 1999. Appellants alleged that, after the divorce, they
frequently visited their grandchildren, took them on vacations, and bought them clothes, toys,
and other items. In 2004, Lena became estranged from appellants and denied them further
contact with the children. She persuaded Shannon to do the same. Appellants thereafter filed a
petition for grandparenting time pursuant to MCL 722.27b(1)(b). The trial court dismissed the
petition pursuant to MCL 722.27b(5), because Shannon and Lena both signed an affidavit stating
that they opposed an order for grandparenting time. Thereafter, the trial court denied appellants'
motion for relief from the order denying them grandparenting time and awarded Lena attorney
fees.
On appeal, appellants argue that MCL 722.27b(5) violates their constitutional rights to
due process and equal protection. The constitutionality of a statute is a question of law that this
Court reviews de novo. Morreale v Dep't of Community Health, 272 Mich App 402, 405; 726
NW2d 438 (2006). This Court must presume that a statute is constitutional, and the party
asserting that a statute is unconstitutional must establish that no circumstances exist under which
it would be valid. Keenan v Dawson, 275 Mich App 671, 680; 739 NW2d 681 (2007).
MCL 722.27b provides, in pertinent part:
(1) A child's grandparent may seek a grandparenting time order under 1 or
more of the following circumstances:
(a) An action for divorce, separate maintenance, or annulment involving
the child's parents is pending before the court.
(b) The child's parents are divorced, separated under a judgment of
separate maintenance, or have had their marriage annulled.
(c) The child's parent who is a child of the grandparents is deceased.
(d) The child's parents have never been married, they are not residing in
the same household, and paternity has been established . . . .
(e) Except as otherwise provided in subsection (13), legal custody of the
child has been given to a person other than the child's parent, or the child is
placed outside of and does not reside in the home of a parent.
(f) In the year preceding the commencement of an action under subsection
(3) for grandparenting time, the grandparent provided an established custodial
environment for the child as described in section 7, whether or not the
grandparent had custody under a court order.
* * *
(3) A grandparent seeking a grandparenting time order shall commence an
action for grandparenting time, as follows:
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(a) If the circuit court has continuing jurisdiction over the child, the child's
grandparent shall seek a grandparenting time order by filing a motion with the
circuit court in the county where the court has continuing jurisdiction.
(b) If the circuit court does not have continuing jurisdiction over the child,
the child's grandparent shall seek a grandparenting time order by filing a
complaint in the circuit court for the county where the child resides.
(4) All of the following apply to an action for grandparenting time under
subsection (3):
(a) The complaint or motion for grandparenting time filed under
subsection (3) shall be accompanied by an affidavit setting forth facts supporting
the requested order. The grandparent shall give notice of the filing to each person
who has legal custody of, or an order for parenting time with, the child. A party
having legal custody may file an opposing affidavit. A hearing shall be held by
the court on its own motion or if a party requests a hearing. At the hearing, parties
submitting affidavits shall be allowed an opportunity to be heard.
(b) In order to give deference to the decisions of fit parents, it is presumed
in a proceeding under this subsection that a fit parent's decision to deny
grandparenting time does not create a substantial risk of harm to the child's
mental, physical, or emotional health. To rebut the presumption created in this
subdivision, a grandparent filing a complaint or motion under this section must
prove by a preponderance of the evidence that the parent's decision to deny
grandparenting time creates a substantial risk of harm to the child's mental,
physical, or emotional health. If the grandparent does not overcome the
presumption, the court shall dismiss the complaint or deny the motion.
(c) If a court of appellate jurisdiction determines in a final and
nonappealable judgment that the burden of proof described in subdivision (b) is
unconstitutional, a grandparent filing a complaint or motion under this section
must prove by clear and convincing evidence that the parent's decision to deny
grandparenting time creates a substantial risk of harm to the child's mental,
physical, or emotional health to rebut the presumption created in subdivision (b).
(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.
(6) If the court finds that a grandparent has met the standard for rebutting
the presumption described in subsection (4), the court shall consider whether it is
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in the best interests of the child to enter an order for grandparenting time. If the
court finds by a preponderance of the evidence that it is in the best interests of the
child to enter a grandparenting time order, the court shall enter an order providing
for reasonable grandparenting time of the child by the grandparent by general or
specific terms and conditions. . . .
MCL 722.27b was amended in 2004 after a previous version of the statute was held to be
unconstitutional in DeRose v DeRose, 469 Mich 320; 666 NW2d 636 (2003). See also Keenan,
supra at 678-679. In DeRose, supra at 332-334, our Supreme Court held that the prior version of
the statute violated the fundamental rights of parents to raise their children because it did not
require the deciding court to grant any deference to fit parents' decisions regarding grandparent
visitation. The Court's decision was based on Troxel v Granville, 530 US 57; 120 S Ct 2054;
147 L Ed 2d 49 (2000), in which a plurality of the United States Supreme Court held that the
state of Washington's nonparent visitation statute was unconstitutional because it allowed the
trial court to order visitation without granting deference to the parents' decisions, contrary to the
parents' fundamental right and liberty interest in managing the care, custody, and control of their
children. Id. at 70-74 (O'Connor, J., Rehnquist, C.J., Ginsburg, J., and Breyer, J.), 77-79 (Souter,
J.), and 80 (Thomas, J.).
After our Supreme Court decided DeRose, the Legislature amended MCL 722.27b and
added subsections 4(b) and (c) and 5. 2004 PA 542. As amended, the statute requires a court
deciding a grandparent's petition for visitation to presume that a fit parent's decision to deny
grandparenting time does not create a substantial risk of mental, physical, or emotional harm to
the child, and the grandparent bears the burden of rebutting that presumption by a preponderance
of the evidence. MCL 722.27b(4)(b). However, if two fit parents (with the exception of certain
circumstances that are not present in this case) both oppose visitation, their joint opposition
effectively creates an irrebuttable presumption that denial of grandparenting time will not create
a substantial risk of harm to the child, and the grandparents' petition must be dismissed. MCL
722.27b(5).
Appellants first argue that MCL 722.27b(5) denies them their substantive due process
right to maintain a familial relationship that is in their grandchildren's best interests. No person
may be deprived of life, liberty, or property without due process of law. US Const, Am XIV, §
1; Const 1963, art 1, § 17; Tolksdorf v Griffith, 464 Mich 1, 7; 626 NW2d 163 (2001). The
underlying purpose of substantive due process is to secure the individual from the arbitrary
exercise of governmental power. W A Foote Mem Hosp v City of Jackson, 262 Mich App 333,
341-342; 686 NW2d 9 (2004). The question whether challenged legislation violates principles
of substantive due process depends on the nature of the right affected. If a party challenges a
classification that affects a fundamental right or involves a suspect classification, strict scrutiny
applies and a compelling state interest is required to uphold it. Morreale, supra at 407. But if
the classification neither affects a fundamental right nor involves a suspect classification, the
rational basis test applies. Id. This test examines whether the law is rationally related to a
legitimate governmental purpose. W A Foote Mem Hosp, supra at 342.
Appellants contend that they have a fundamental right to maintain a relationship with
their grandchildren and, therefore, the strict scrutiny test applies. We disagree. Appellants'
reliance on Overton v Bazzetta, 539 US 126; 123 S Ct 2162; 156 L Ed 2d 162 (2003), and Moore
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v City of East Cleveland, 431 US 494; 97 S Ct 1932; 52 L Ed 2d 531 (1977), is misplaced.
Although the Supreme Court in Overton referred to a fundamental liberty interest in maintaining
family relationships without government interference, the case involved the constitutionality of
prison regulations that precluded visits from children other than the prisoners' children,
grandchildren, or siblings. That case does not support the notion that appellants have a
fundamental right to visitation with their grandchildren without parental consent. In Moore, the
Supreme Court held that a local zoning ordinance violated fundamental rights to family
relationships by prohibiting a grandmother from residing with two grandsons who were cousins.
Unlike this case, Moore involved state interference in family matters.
MCL 722.27b(5) does not authorize governmental interference into a family relationship.
Instead, it restricts a court's authority to interfere with parental decisions concerning
grandparenting time, in accordance with Troxel and DeRose, supra. This case does not turn on
general principles concerning the right to family relationships free of governmental interference,
but rather on principles concerning the rights of parents versus the rights of grandparents. In
DeRose, the prior version of MCL 722.27b was found to be unconstitutional because it permitted
the courts to intrude on parents' constitutionally protected rights for the benefit of grandparents.
Indeed, our Supreme Court has specifically held that grandparents have no fundamental right to
a relationship with their grandchildren. In Frame v Nehls, 452 Mich 171, 183-184; 550 NW2d
739 (1996), the Court held that there is no constitutionally protected fundamental right to
grandparent visitation, and that the right of visitation exists only by statute. See also Johnson v
White, 261 Mich App 332, 344; 682 NW2d 505 (2004) (observing that while "[t]here is no doubt
that grandparents play an important role in a child's life[,] . . . grandparents do not have a
fundamental right to make decisions for their grandchild"). Accordingly, because a fundamental
right is not implicated, the constitutionality of MCL 722.27b(5) is measured by whether the
statute is rationally related to a legitimate governmental purpose. W A Foote Mem Hosp, supra
at 341-342.2
We conclude that 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 that were found in the previous statute.
DeRose, supra at 332-334; Keenan, supra at 678-679. As amended, the statute affords broad
deference to parents by limiting the circumstances in which grandparents may seek visitation, by
2
Contrary to appellants' argument, the Ohio Supreme Court did not recognize a constitutional
right to grandparent visitation in Harrold v Collier, 107 Ohio St 3d 44; 836 NE2d 1165 (2005).
Rather, the court held that Ohio's grandparent visitation statute was not an unconstitutional
infringement on parental rights. The court concluded that the Ohio statute passed constitutional
muster under Troxel. Harrold, supra at 51-52. The court merely acknowledged that a
grandparent visitation statute is permissible under Troxel as long as it accords "at least some
special weight to the parent's wishes." Id. The court did not limit the weight that a state may
give to the parent's wishes, but rather found that Ohio's statute was "narrowly tailored" to serve
the child's interests Id. at 52. Nothing in Harrold supports appellants' argument that a state must
provide a certain degree of protection to grandparents as a matter of constitutional due process.
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imposing the burden of proof on grandparents, and by requiring the 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:
(1) where a parent has died, and the surviving parent is not the grandparents' child.
[Subsection 1(c).]
(2) where the parents never formed, or no longer have, an intact marital or domestic
relationship. [Subsections 1(a), (b), and (d).]
(3) where someone other than the parents has legal custody of the child or the child has
been placed outside the parents' home. [Subsection 1(e).]
(4) where the grandparents provided an established custodial environment for the child in
the previous year. [Subsection 1(f).]
The first two circumstances involve situations where there is a greater likelihood that parents
will deny visitation for reasons that are unrelated to a child's best interest. The third category
generally involves parents who have temporarily or permanently lost legal control over their
children. Significantly, these three sets of circumstances all involve situations in which there is
recognized authority for judicial intervention in family matters, see, e.g., the Child Custody Act,
MCL 722.21 et seq., and statutes governing the adjudication and disposition of abused and
neglected children, MCL 712A.1 et seq. The fourth circumstance involves situations where a
grandparent has acted as a de facto parent. These four categories involve special circumstances
where there are legitimate reasons for recognizing heightened protection of the grandparentgrandchild relationship. None of these circumstances is implicated where a child's natural
parents are both fit and both oppose grandparent visitation. In this situation, MCL 722.27b(5) is
rationally related to the legitimate purpose of preserving fit parents' fundamental right to manage
the care, custody, and control of their children.
We reject appellants' attempt to recast this issue by focusing on their grandchildren's
alleged fundamental right to maintain a relationship with their grandparents. First, appellants do
not have standing to assert any alleged constitutional rights of their grandchildren. See In re
Investigative Subpoena re Homicide of Lance C Morton, 258 Mich App 507, 509; 671 NW2d
570 (2003) (noting that constitutional rights are personal and a person generally does not have
standing to assert a constitutional right on behalf of another). Moreover, it is well established in
Michigan that court intrusion into parent-child matters is only justified when the parents are in
opposition to each other, such as in a custody dispute, or where the parents are unfit. See In re
Clausen, 442 Mich 648, 683-684, 686-687; 502 NW2d 649 (1993). We have not found any
authority for giving precedence to a minor child's preferences over a parent's decisions apart
from these circumstances.
For these reasons, we reject appellants' substantive due process challenge to the
constitutionality of MCL 722.27b(5).
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Appellants next argue that MCL 722.27b(5) deprives them of procedural due process. "A
procedural due process analysis requires a dual inquiry: (1) whether a liberty or property interest
exists which the state has interfered with, and (2) whether the procedures attendant upon the
deprivation were constitutionally sufficient." Hinky Dinky Supermarket, Inc v Dep't of
Community Health, 261 Mich App 604, 606; 683 NW2d 759 (2004) (internal quotation and
citation omitted). Appellants argue that MCL 722.27b(5) is unconstitutional because it does not
give them the opportunity to challenge the parents' joint affidavit in opposition to their petition
for visitation. The clear purpose of MCL 722.27b(5) is to preclude court action where both
parents oppose grandparent visitation, in furtherance of the statutory scheme to defer to parents'
preferences, except in narrowly prescribed circumstances. This scheme would be altogether
thwarted if grandparents were permitted to challenge the weight and credibility of the parents'
affidavit. We therefore reject appellants' procedural due process argument.
Finally, appellants argue that the irrebuttable presumption against grandparenting time
when two fit parents oppose grandparent visitation, pursuant to MCL 722.27b(5), violates their
constitutional right to equal protection. Appellants argue that they should be given the same
opportunity to seek a visitation order as grandparents of children whose parents do not
unanimously oppose visitation.
Both the federal and state constitutions provide that no person will be denied the equal
protection of the law. US Const, Am XIV, § 1; Const 1963, art 1, § 2; Frame, supra at 183; Neal
v Oakwood Hosp Corp, 226 Mich App 701, 716; 575 NW2d 68 (1997). The federal and state
constitutional guarantees of equal protection are coextensive. Neal, supra at 716. The
constitutional guarantee of equal protection ensures that people similarly situated will be treated
alike, but it does not guarantee that people in different circumstances will be treated the same.
Morales v Parole Bd, 260 Mich App 29, 49; 676 NW2d 221 (2003). When a statute is
challenged as being violative of equal protection, a court should consider the provisions of the
whole law, as well as its object and policy. Frame, supra at 183. The validity of the
classification is measured by one of three tests, depending on the type of classification and the
nature of the interest affected. Neal, supra at 717. Social or economic legislation is reviewed
under the rational basis test. Id. Under the rational basis test, the statute will be upheld as long
as the classification scheme is rationally related to a legitimate governmental purpose. Frame,
supra at 189. Because grandparents do not have a fundamental right to maintain a family
relationship with their grandchildren, the rational basis test is applicable. Id. at 183-184, 189.
MCL 722.27b grants absolute deference to parents if they do not fall into any of the
categories set forth in subsection 1. MCL 722.27b(5) also grants absolute deference to parents
who fit one of the categories set forth in subsection 1, provided they unanimously oppose an
order for grandparenting time. Parents who do come within one of the categories in MCL
722.27b(1), and who do not satisfy MCL 722.27b(5), are granted only qualified deference. The
ostensible basis for these differing classifications is that parents have the right to make decisions
concerning their children's welfare, including contacts with grandparents, unless special
circumstances justify state intervention. If the parents do not have an intact relationship, or if the
child of the grandparents is deceased, or if the parents have been found to be unfit, there is a
greater likelihood that the parents will not be able to reach an agreement regarding grandparent
visitation, or that they will make decisions not related to their children's best interests. These
concerns are not as prevalent where parents are partners in an intact marriage or domestic
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partnership, or where fit parents unanimously oppose grandparenting time. Accordingly, there is
a rational basis for distinguishing between the class of grandparents who may seek court
intervention, and those who may not. We therefore conclude that MCL 722.27b(5) satisfies the
rational basis test and, accordingly, reject appellants' equal protection challenge.
We hold that MCL 722.27b(5) is constitutional and remand this case to the trial court for
consideration on the merits of any remaining issues, consistent with this Court's July 18, 2006,
order. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
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