THERESA O'DAY DEROSE V JOSEPH ALLEN DEROSE
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e
Maura D. Corrigan
J u s t ic e s
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 31, 2003
THERESA O’DAY DEROSE, also known as
THERESA SEYMOUR,
Plaintiff Third-Party
Defendant-Appellee,
v
No.
121246
JOSEPH ALLEN DEROSE,
Defendant-Appellee,
and
CATHERINE DEROSE,
Third-Party Plaintiff-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
This
case
presents
a
dispute
under
the
grandparent
visitation statute, MCL 722.27b, between a mother, Theresa
Seymour,1 and a paternal grandmother, Catherine DeRose, who
sought visitation with her granddaughter.
1
Formerly Theresa DeRose.
The trial court
ordered limited visitation, and the mother appealed.
The
Court of Appeals held that this statute was unconstitutional.
We affirm.
I.
Facts
The child at issue in this case was born during the
marriage of Theresa and Joseph DeRose. In 1997, Joseph DeRose
was sentenced to twelve to twenty years in prison after
pleading guilty of first-degree criminal sexual conduct (CSC-
I) involving his stepdaughter. Theresa filed for divorce, and
a default judgment of divorce was entered the following year.
Theresa was awarded sole legal and physical custody of the
child.
While the divorce was pending, Catherine DeRose filed a
petition
for
visitation
statute, MCL 722.27b.2
under
the
grandparent
visitation
Theresa DeRose opposed visitation
2
(1) Except as provided in this subsection, a
grandparent of the child may seek an order for
grandparenting time in the manner set forth in this
section only if a child custody dispute with
respect to that child is pending before the court.
. . .
(2) As used in this section, “child custody
dispute” includes a proceeding in which any of the
following occurs:
(a) The marriage of the child’s parents is
declared invalid or is dissolved by the court, or a
court enters a decree of legal separation with
regard to the marriage.
2
because the grandmother denied that her son was guilty of the
crimes he admitted committing and, thus, in Theresa’s view,
contact with the child was not in the child’s best interest.
The Friend of the Court, after investigation, concluded
that Catherine DeRose lacked standing to bring this petition
for visitation.
After the grandmother objected, another
Friend of the Court investigation took place resulting in a
recommendation
that
the
grandmother
have
two
hours
of
supervised visitation with the child on alternate Saturdays,
* * *
(3) A grandparent seeking a grandparenting
time
order
may
commence
an
action
for
grandparenting time, by complaint or complaint and
motion for an order to show cause, in the circuit
court in the county in which the grandchild
resides. If a child custody dispute is pending, the
order shall be sought by motion for an order to
show cause. The complaint or motion shall be
accompanied by an affidavit setting forth facts
supporting the requested order. The grandparent
shall give notice of the filing to each party who
has legal custody of the grandchild. 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 so requests. At the hearing,
parties submitting affidavits shall be allowed an
opportunity to be heard. At the conclusion of the
hearing, if the court finds 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. If a hearing is not held, the
court shall enter a grandparenting time order only
upon a finding that grandparenting time is in the
best interests of the child. . . .
3
increasing to four hours after an eight-month period.
The mother objected to the recommendation, and the case
proceeded to a hearing in the Wayne Circuit Court.
testimony or evidence was taken at the hearing.
The trial
court granted the grandmother’s petition, stating:
But it doesn’t strike me that there is any
reason here that a child should be deprived of a
grandmother. Grandmothers are very important.
Grandmothers are very important. [sic] I don’t say
that just because I am one, but I do believe they
are important. I have a niece who doesn’t have any
and she borrows grandparents and I realize this is
difficult, a very difficult time for the 12-year
old, but the 12-year-old is not going to be
required to see this lady. Not that it necessarily
would be terrible, but I’m not saying it would be
good. She is not going to see her. That’s not the
point.
This is not a motion for custody so that [the
child] would be taken away from her sisters for the
rest of her life or for a long period of time, even
a weekend. This is like two hours of supervised
visitation and I know that mom—now, I’m sure mom
feels, well, I made a bad choice, I wasn’t
aware—this, that and the other thing. So now she
wants to overcorrect.
It makes no sense to me that this grandmother
can’t have two hours of supervised visitation and
even four hours of supervised visitation as
recommended by the Friend of the Court and that’s
plenty of time to evaluate whether anything bad or
wrong happens.
It’s very troubling that the concept that
somehow this whole incident can just be erased by
keeping the child’s actual grandmother away from
her. It can’t be, and everybody is going to have to
learn to deal with it which is not happy, it’s not
good.
* * *
4
No
It doesn’t strike me that a supervised
visitation is wrong, so I would affirm the
recommendation.
The mother sought relief in the Court of Appeals, arguing
that the grandparent visitation statute was unconstitutional.
The Court of Appeals, in a split decision, reversed the
decision of the trial court.
(2002).
The
panel
249 Mich App 388; 643 NW2d 259
concluded
the
grandparent
visitation
statute was unconstitutional on the basis of the United States
Supreme Court decision in Troxel v Granville, 530 US 57; 120
S Ct 2054; 147 L Ed 2d 49 (2000), which dealt with a somewhat
similar third-party visitation statute in Washington that the
Court ruled was unconstitutional.
The Court of Appeals
approach in deciding this matter was to compare the Washington
statute to the Michigan statute to determine if the defects
found by the Supreme Court in the Washington statute were
mirrored in the Michigan act.
Having done that, the Court of
Appeals
concluded
the
Michigan
similar
to
Washington
statute
the
that
statute
and,
was
thus,
fatally
it
unconstitutional pursuant to the Troxel analysis.
was
As the
panel said, “Simply put, if a court in Washington cannot
constitutionally
be
vested
with
the
discretion
to
grant
visitation to a nonparent on the basis of a finding that it is
in the child’s best interests to do so, then a court in
Michigan cannot be obligated under statute to do so based upon
5
the same finding.”
249 Mich App 394.
The Court of Appeals also addressed whether, by means of
reading “requirements that go beyond the text of the statute,”
249
Mich
App
395,
into
the
constitutional deficiencies.
statute,
it
could
cure
the
The panel declined to do this
because it believed such actions to be the responsibility of
the Legislature and beyond the authority of a court.
Catherine DeRose sought relief in this Court, and we
granted leave to appeal.3
II.
Standard of Review
The constitutionality of a statute is reviewed de novo.
Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001).
Statutes
are
presumed
constitutional
unconstitutionality is clearly apparent.
unless
the
McDougall v Schanz,
461 Mich 15, 24; 597 NW2d 148 (1999).
III.
Analysis
In 2000, the United States Supreme Court heard and
decided the Troxel case concerning the constitutionality of
third-party
visitation.
At
issue
was
the
state
of
Washington’s third-party visitation statute, Wash Rev Code
26.10.160(3), which was as expansive in granting third parties
visitation privileges as can readily be envisioned.
stated:
3
467 Mich 884 (2002).
6
It
Any person may petition the court for
visitation rights at any time including, but not
limited to, custody proceedings.
The court may
order visitation rights for any person when
visitation may serve the best interest of the child
whether or not there has been a change of [sic,
“in”] circumstances. [Troxel, supra at 61.]
Operating under this statute, grandparents Jenifer and
Gary Troxel sought greater visitation with their grandchildren
than the children’s mother would allow.
The trial court
granted visitation under the act, but the Washington Court of
Appeals reversed for lack of standing.
Troxel, supra at 62;
In re Visitation of Troxel, 87 Wash App 131, 137; 940 P2d 698
(1997). The grandparents appealed, and the Washington Supreme
Court, resting its decision on the United States Constitution,
held
that
the
statute
was
unconstitutional
because
it
interfered with the right of parents, pursuant to substantive
due process, to raise their children. Troxel, supra at 62-63;
In re Smith, 137 Wash 2d 1, 13-14; 969 P2d 21 (1998).
The
statute did this, the court opined, because, contrary to
relevant, constitutional doctrines on substantive due process,
the court could order visitation over the parents’ objection
without first determining that court intervention was required
to prevent harm or potential harm to the child. Moreover, the
Washington Supreme Court held that the statute, by allowing
any person to petition for visitation at any time subject only
to a judge’s unguided determination of the best interests of
7
the child, was so overbroad that it violated constitutional
requirements of due process.
Id. at 30.
Accordingly, it was
unconstitutional for the additional reason that, as applied,
it operated to deprive parents of their constitutionally
protected rights to due process.
On appeal the United States Supreme Court also found the
statute unconstitutional.
The Supreme Court’s holding, while
clear regarding the outcome, is, unfortunately, written in so
many voices that a unifying rationale is difficult to discern.
Initially, in reviewing the decision it is important to note
that the Court did not, unlike the Washington Supreme Court,
analyze the case on the basis of theories implicating facial
invalidities such as a violation of substantive due process
would entail.
In fact, only Justices Souter, Stevens, and
Scalia, with three different positions as it developed, used
that approach to decide the matter.
Moreover, the plurality
of four justices for whom Justice O’Connor wrote4 seemed to
deal with what were facial-challenge issues while not fully
acknowledging that such was the case.
Yet, notwithstanding
these difficulties, the Washington statute, when the smoke
cleared, was held to be unconstitutional.
It falls to us, as
it has to other state supreme courts post-Troxel, to attempt
4
Justice O’Connor’s opinion was joined by Chief Justice
Rehnquist, Justice Ginsburg, and Justice Breyer.
8
to determine what at least five of the six justices who came
to their conclusion did agree upon.
We believe, guardedly,
that a majority can be found in the Court’s handling of the
second issue that the Washington Supreme Court discussed,
namely, the statute’s overbreadth that caused it to violate
parental liberty interests that are protected by the due
process guarantees of the United States Constitution.
The effort to discern where at least five justices agreed
must begin with Justice O’Connor’s plurality opinion.
Its
discussion of the law began by restating that, pursuant to
established constitutional law, the Fourteenth Amendment’s Due
Process
Clause
includes
“‘provides
heightened
interference
with
interests.’”
certain
a
substantive
protection
fundamental
component
against
rights
that
government
and
liberty
Troxel, supra at 65, quoting Washington v
Glucksberg, 521 US 702, 720; 117 S Ct 2258; 138 L Ed 2d 772
(1997).
One of the liberty interests the Court identified,
after characterizing it as perhaps the oldest such interest,
is “the interest of parents in the care, custody, and control
of their children . . . .”
Troxel, supra at 65, quoting Meyer
v Nebraska, 262 US 390, 399, 401; 43 S Ct 625; 67 L Ed 1042
(1923), and Pierce v Society of Sisters, 268 US 510, 534-535;
45 S Ct 571; 69 L Ed 1070 (1925).
Further, the opinion
reaffirmed that it is presumed that “so long as a parent
9
adequately cares for his or her children (i.e., is fit), there
will normally be no reason for the State to inject itself into
the private realm of the family to further question the
ability of that parent to make the best decisions concerning
the rearing of that parent’s child.”
Troxel, supra at 68-69.
See Reno v Flores, 507 US 292, 304; 113 S Ct 1439; 123 L Ed 2d
1 (1993).
With
this
substantive
discussion
due
process
of
the
behind
rights
her,
of
parents
Justice
to
O’Connor
apparently decided not to resolve the case on that basis.
Rather, she continued her discussion by concluding that the
Washington statute was an unconstitutional infringement of
parental rights because the statute failed to require that a
trial court accord deference to the decisions of fit parents
regarding
third-party
visitation.
According
to
Justice
O’Connor, in order for a nonparental visitation statute to
allow for such deference, it must articulate a presumption
that
parents
act
in
their
children’s
best
interests.
Additionally, the statute must place the burden of proof on
the petitioner. Troxel, supra at 67-70.
Moreover, Justice
O’Connor asserted that the statute was overbroad because
anyone, at any time, could petition for visitation.5
5
Thus,
Under the statute, as she described it, should the
trial judge disagree with the parent’s determination, the
judge’s determination of what would be in the child’s best
10
her opinion affirmed the Washington Supreme Court decision,
but,
we
emphasize,
did
not
hold
that
all
nonparental
visitation statutes were facially unconstitutional.
Troxel,
supra at 73.
Justice Souter, in his concurrence, began by asserting
that he would affirm the Washington Supreme Court on the basis
that its analysis of the issues relating to substantive due
process was consistent with the United States Supreme Court
jurisprudence in this area.
He continued by saying that he
saw “no error” in the Washington Supreme Court’s second
justification
that
the
“statute’s
authorization
of
‘any
interests would prevail.
Indeed, she concluded that the
reasons offered in this case by the trial court in granting
visitation indicated nothing more than a simple disagreement
with the mother’s decision regarding visitation:
[T]he Superior Court made only two formal
findings in support of its visitation order. First,
the Troxels “are part of a large, central, loving
family, all located in this area, and the [Troxels]
can provide opportunities for the children in the
areas of cousins and music.” Second, “the children
would be benefitted from spending quality time with
the [Troxels], provided that that time is balanced
with time with the childrens’ [sic] nuclear
family.”
These slender findings, in combination
with the court’s announced presumption in favor of
grandparent visitation and its failure to accord
significant weight to Granville’s already having
offered meaningful visitation to the Troxels, show
that this case involves nothing more than a simple
disagreement between the Washington Superior Court
and Granville concerning her children’s best
interests.
[Troxel,
supra
at
72
(citations
omitted).]
11
person’ at ‘any time’ to petition and to receive visitation
rights subject only to a free-ranging best-interest-of-the
child
standard”
because
it
swept
unconstitutional on its face.”
this
meant
that
the
“too
broadly
Id. at 76-77.6
Washington
Supreme
and
is
As he saw it,
Court
had
said
“[c]onsequently, there is no need to decide whether harm is
required or to consider the precise scope of the parent’s
right or its necessary protections.”
Id.
Justice Thomas also concurred that the issues concerning
substantive due process were not addressed and that he agreed
with
the
O’Connor
plurality
in
its
“recognition
of
a
fundamental right of parents to direct the upbringing of their
children . . . .”
Id. at 80.
He then concluded that he would
apply strict scrutiny to the “infringements of fundamental
rights” by the state of Washington and that the statute failed
this
test
because
Washington
“lacks
even
a
legitimate
governmental interest—to saying nothing of a compelling one—in
6
Justice Souter agreed with the plurality that the
statute was unconstitutional because it failed to require a
trial court to accord any deference to a fit parent’s decision
regarding third-party visitation. Troxel, supra at 78 n 2
(Souter, J., concurring), quoting the plurality:
As Justice O’CONNOR points out, the best
interests provision “contains no requirement that a
court accord the parent’s decision any presumption
of validity or any weight whatsoever. Instead, the
Washington
statute
places
the
best-interest
determination solely in the hands of the judge.”
[Citation omitted.]
12
second-guessing a fit parent’s decision regarding visitation
with third parties.”
Id.
Accordingly, it is from the O’Connor plurality, as well
as the opinions of Justices Souter and Thomas, that we must
discern the principles that caused them to conclude that the
Washington statute was unconstitutional.7
Once accomplished,
we then apply those principles to the Michigan statute to
determine if our statute is sufficiently different from the
Washington statute at issue in Troxel to pass constitutional
muster.
First, to isolate the agreed-upon matters between the
opinion of Justice O’Connor and those of Justices Souter and
Thomas, it appears to us that all six justices agreed that
parents have what they described as a “fundamental right” to
raise
their
children.8
Further,
on
the
basis
of
this
“fundamental right,” both Justice O’Connor and Justice Souter
found that parents have the right to make decisions for
children, and such decisions must be accorded “deference” or
“weight.”
Troxel, supra at 67, 78 n 2.
Therefore, a
7
We do not review the remaining three opinions by
Justices Scalia, Kennedy, or Stevens because of the lack of
any relevant shared conclusions by these justices with the
O’Connor, Souter, or Thomas positions.
8
While the plurality and Justice Thomas, concurring,
described this as a “fundamental right,” Troxel, supra at 66,
80, Justice Souter described it as a “substantive interest[].”
Id., at 75 (Souter, J., concurring).
13
visitation statute of the sort at issue here must, as we read
Troxel, require that a trial court accord deference to the
decisions of fit parents regarding third-party visitation.
That
is,
it
is
not
enough
that
the
trial
court
simply
disagrees with decisions the parents have made regarding
third-party visitation.
Troxel, supra at 67, 77-78.
The Michigan statute states, in relevant part
(1) Except as provided in this subsection, a
grandparent of the child may seek an order for
grandparenting time in the manner set forth in this
section only if a child custody dispute with
respect to that child is pending before the court.
. . .
(2) As used in this section, “child custody
dispute” includes a proceeding in which any of the
following occurs:
(a) The marriage of the child’s parents is
declared invalid or is dissolved by the court, or a
court enters a decree of legal separation with
regard to the marriage.
* * *
(3) A grandparent seeking a grandparenting
time
order
may
commence
an
action
for
grandparenting time, by complaint or complaint and
motion for an order to show cause, in the circuit
court in the county in which the grandchild
resides. If a child custody dispute is pending, the
order shall be sought by motion for an order to
show cause. The complaint or motion shall be
accompanied by an affidavit setting forth facts
supporting the requested order. The grandparent
shall give notice of the filing to each party who
has legal custody of the grandchild. 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 so requests. At the hearing,
parties submitting affidavits shall be allowed an
14
opportunity to be heard. At the conclusion of the
hearing, if the court finds 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. If a hearing is not held, the
court shall enter a grandparenting time order only
upon a finding that grandparenting time is in the
best interests of the child. . . . The court shall
make a record of the reasons for a denial of a
requested grandparenting time order.
There
deference
is
no
indication
that
the
statute
requires
of any sort be paid by a trial court to the
decisions fit parents make for their children.9
Thus, like
the Washington statute at issue in Troxel, it is for this
reason, the fact that our statute fails to require that a
trial court accord deference to the decisions of fit parents
regarding grandparent visitation, that we find our statute is
constitutionally deficient.10
9
Moreover, the clear language of MCL 722.27b(3)
indicates that the court is only required to make a record of
the reasons for its decision in a grandparenting visitation
case if visitation is denied. Apparently, if visitation is
granted, the trial court need not justify its decision with
any factual findings or analysis. Thus, rather than giving
any “special weight” to the determination of a fit parent, the
thrust of this provision appears to favor grandparent
visitation in the face of a contrary preference by a fit
parent.
10
It should be noted, however, that the Michigan statute
is much narrower than Washington’s in conferring standing to
pursue visitation. It, thus, appears to us to meet the Troxel
tests in this regard. Rather than applying to any person at
any time, it applies only to grandparents, and only in two
situations: where there is a child-custody dispute before the
court, or where the unmarried parent is deceased.
MCL
15
V.
Conclusion
Aware of the statute’s constitutional infirmities, we
must declare it constitutionally invalid. We have not, unlike
Justice
Kelly’s
opinion,
addressed
the
“substantive
due
process” argument, i.e., whether a predicate of any such
intervention into the parent-child relationship is a showing
of harm or potential harm to the child, because it is not
necessary to resolve this case under Troxel.
Moreover, after
Troxel it appears that federal constitutional law in this area
is now not as predictable as it was before Troxel.
One cannot
read the many opinions in Troxel without concluding that an
equilibrium has not been reached, and that the Supreme Court
may be moving in the direction of rethinking its “substantive
due process” jurisprudence so as to make it easier, or more
difficult, for the state to intervene by ordering visitation
in the parent-child relationship.
Because we can decide this
case without endeavoring to read the portents on that matter,
722.27b(1) and (2). Further, a grandparent may only file once
every two years, absent a showing of good cause, MCL
722.27b(4), under procedures articulated at MCL 722.27b(3).
Moreover, Michigan’s courts cannot restrict the movement of
the child solely to allow the grandparent to exercise the
rights in the statute. MCL 722.27b(5). Noteworthy also is
that the statute carefully sets out that a grandparenting-time
order does not confer parental rights in those to whom the
visitation is granted, MCL 722.27b(6), and that any orders
granted under the act may be modified or terminated when in
the best interests of the child, MCL 722.27b(7).
16
we prudentially decline to do so.
In conclusion, bound as we are by the decision in Troxel,
we are compelled to affirm the judgment of the Court of
Appeals and find the Michigan grandparent visitation statute
unconstitutional as written.
Affirmed and remanded to the trial court for proceedings
consistent with this opinion.
Clifford W. Taylor
Maura D. Corrigan
Michael F. Cavanagh
Robert P. Young, Jr.
Stephen J. Markman
17
S T A T E
O F
M I C H I G A N
SUPREME COURT
THERESA O’DAY DEROSE, also known as
THERESA SEYMOUR,
Plaintiff Third-Party
Defendant-Appellee,
v
No.
121246
JOSEPH ALLEN DEROSE,
Defendant-Appellee,
and
CATHERINE DEROSE,
Third-Party Plaintiff-Appellant.
____________________________________
WEAVER, J. (concurring in result).
I concur in the result only of the majority opinion that
Michigan’s grandparent visitation statute, MCL 722.27b, is
unconstitutional on its face.
I write separately because I recognize the importance of
the grandparent visitation statute and wish to emphasize that
grandparent visitation statutes are not unconstitutional per
se.
The statutes may be written in such a way that they
comply
with
constitutional
requirements.
See
Troxel
v
Granville, 530 US 57, 73; 120 S Ct 2054; 147 L Ed 2d 49
(2000). Therefore, I urge the Legislature to amend Michigan’s
statute to alleviate the constitutional flaws in the statute.
While Michigan’s statute is narrower than the statute at
issue in Troxel,1 the statute is, nonetheless, flawed for the
1
Michigan’s statute is narrower because it only allows
grandparents to petition for visitation, rather than any
party.
Moreover, the statute, MCL 722.27b, limits when a
grandparent may petition for visitation, providing in part:
(1) Except as provided in this subsection, a
grandparent of the child may seek an order for
grandparenting time in the manner set forth in this
section only if a child custody dispute with
respect to that child is pending before the court.
If a natural parent of an unmarried child is
deceased, a parent of the deceased person may
commence an action for grandparenting time.
Adoption of the child by a stepparent under [MCL
710.21 to 710.70] does not terminate the right of a
parent of the deceased person to commence an action
for grandparenting time.
(2) As used in this section, “child custody
dispute” includes a proceeding in which any of the
following occurs:
(a) The marriage of the child’s parents is
declared invalid or is dissolved by the court, or a
court enters a degree of legal separation with
regard to the marriage.
(b) Legal custody of the child is given to a
party other than the child’s parent, or the child
is placed outside of and does not reside in the
home of a parent, excluding any child who has been
placed for adoption with other than a stepparent,
or whose adoption by other than a stepparent has
been legally finalized.
Under the statute, a grandparent may not file more than
once every two years, absent a showing of good cause. MCL
722.27b(4).
2
following
reasons:
(1)
the
statute
does
not
provide
a
presumption that fit parents act in the best interests of
their children, (2) the statute fails to accord the fit
parent’s decision concerning visitation any “special weight,”
and (3) the statute fails to clearly place the burden in the
proceedings on the petitioners, rather than the parents.
See
Troxel, supra at 67-71 (O’Connor, J., plurality opinion).
However, as addressed below, each of these constitutional
problems can be cured with revisions to the statute and, in
fact, many other state statutes include provisions that may
alleviate some or all these concerns.
These concerns have been addressed by states such as
Utah, where the visitation statute provides, “[t]here is a
rebuttable presumption that a parent’s decision with regard to
grandparent visitation is in the grandchild’s best interests.
. . .”
Utah Code Ann 30-5-2(2).
In Nevada, the visitation
statute addresses these requirements by providing in pertinent
part:
If a parent of the child has denied or
unreasonably restricted visits with the child,
there is a rebuttable presumption that the granting
of a right to visitation to a party seeking
visitation is not in the best interests of the
child.
To rebut this presumption, the party
seeking visitation must prove by clear and
convincing evidence that it is in the best
interests of the child to grant visitation. [Nev
Rev Stat 125C.050(4).]
The Nevada statute explicitly requires the party seeking
3
visitation to rebut the presumption that visitation is not in
the child’s best interests and to prove that it is in the best
interests of the child to grant visitation.
In Georgia,
“there shall be no presumption in favor of visitation by any
grandparent.”
Ga Code Ann 19-7-3(c).
Thus, the burden is on
the grandparent seeking visitation to prove an entitlement to
visitation under the standards articulated in the Georgia
statute.
In New Jersey, the burden in the proceedings is
explicitly placed on the petitioner.
New Jersey’s statute
states, “It shall be the burden of the applicant to prove by
a
preponderance
of
the
evidence
that
the
granting
visitation is in the best interests of the child.”
Ann 9:2-7.1(a).2
of
NJ Stat
Some states also require the grandparent to
demonstrate some sort of preexisting relationship between the
grandparent and the child or an effort to establish one as a
requisite for seeking visitation. Me Rev Stat Ann tit 19-A,
1803(1); Miss Code Ann 93-16-3(2)(a); Neb Rev Stat 43-1802(2);
2
The New Jersey Superior Court, Appellate Division,
rejected a party’s constitutional challenge, although there
was substance in support of the complaint that this statute
was facially unconstitutional, but it did conclude that the
statute was unconstitutional as applied in the case before it.
Wilde v Wilde, 341 NJ Super 381, 386; 775 A2d 535 (2001).
Recently, the New Jersey Supreme Court concluded that
“grandparents seeking visitation under the statute must prove
by a preponderance of the evidence that denial of the
visitation they seek would result in harm to the child. That
burden is constitutionally required to safeguard the due
process rights of fit parents.” Moriarty v Bradt, ___ NJ ___,
___; ___ A2d ___; 2003 NJ LEXIS 699, 14 (2003).
4
NC Gen Stat 50-13.2A; Tenn Code Ann 36-6-306(b)(1).3
Also, several states address the concerns of Troxel by
requiring consideration of the effect of a visitation order on
the child-parent relationship.4
Several
states
specifically
See Troxel, supra at 70.
require
the
trial
court
to
determine that visitation will not adversely affect, interfere
with,
or
substantially
relationship.
interfere
with
the
parent-child
Neb Rev Stat 43-1802(2); NH Rev Stat Ann
458:17-d(II)(b); NJ Stat Ann 9:2-7.1(b)(4); ND Cent Code 14
09-05.1; W Va Code 48-10-501, 48-10-502(5).5
3
In Rideout v Riendeau, 761 A2d 291, 294 (2000), the
Supreme Judicial Court of Maine concluded that Maine’s
Grandparents Visitation Act, Me Rev Stat Ann tit 19-A, 1801
1805, “as applied to the facts presented to us, is narrowly
tailored to serve a compelling state interest, and thus does
not violate the Due Process Clause of the Fourteenth Amendment
of the U.S. Constitution.”
The Mississippi Supreme Court rejected challenges to the
constitutionality of Miss Code Ann 93-16-3(1) and 93-16-3(2),
respectively, in Zeman v Stanford, 789 So 2d 798, 803 (2001),
and Stacy v Ross, 798 So 2d 1275, 1279 (2001).
4
MCL 722.23(j) does require the court to consider “[t]he
willingness and ability of each of the parties to facilitate
and encourage a close and continuing parent-child relationship
between the child and the other parent or the child and the
parents.” However, this language does not explicitly require
the trial court to assess the effect of visitation on the
parent-child relationship.
5
In 1993, the North Dakota Supreme Court declared the
1993 amendment of ND Cent Code 14-09-05.1 unconstitutional “to
the extent that it require[d] courts to grant grandparents
visitation rights with an unmarried minor unless visitation is
found not to be in the child’s best interests, and presume[d]
(continued...)
5
Additionally, some state grandparent visitation statutes
contain a separate list of best-interest factors to consider
when deciding whether to award grandparent visitation.
Nev Rev Stat Ann 125C.050; Tenn Code Ann 36-6-307.
See
I do not
gather from Troxel that a separate list is required; however,
it may be something the Legislature would wish to consider.6
5
(...continued)
visitation rights of grandparents [were] in a child’s best
interests . . . .” Hoff v Berg, 595 NW2d 285, 291 (1999).
The Court further declared that the 1983 version of the
statute was left intact until its valid repeal or amendment.
Id. at 292. The current version of North Dakota’s statute,
which does not include a presumption in favor of grandparent
visitation, took effect on August 1, 2001.
The Supreme Court of Appeals of West Virginia held that
its grandparent act was constitutional in State ex rel Brandon
L v Moats, 209 W Va 752, 754, 762-764 (2001). The Court noted
that the Legislature recodified the grandparent visitation act
but that it did not alter the language of the statutory
provisions it was addressing. Id. at 754, n 2. The citations
in this opinion are to the recodified act.
6
Michigan’s best-interest statute, MCL 722.23, lists the
following factors to consider:
(a) The love, affection, and other emotional
ties existing between the parties involved and the
child.
(b) The capacity and disposition of the
parties involved to give the child love, affection,
and guidance and to continue the education and
raising of the child in his or her religion or
creed, if any.
(c) The capacity and disposition of the
parties involved to provide the child with food,
clothing, medical care or other remedial care
recognized and permitted under the laws of this
(continued...)
6
The various state provisions cited suggest that it is
6
(...continued)
state in place of medical care, and other material
needs.
(d) The length of time the child has lived in
a stable, satisfactory environment, and the
desirability of maintaining continuity.
(e) The permanence, as a family unit, of the
existing or proposed custodial home or homes.
(f) The
involved.
moral
fitness
of
the
parties
(g) The mental and physical health of the
parties involved.
(h) The home, school, and community record of
the child.
(i) The reasonable preference of the child,
if the court considers the child to be of
sufficient age to express preference.
(j) The willingness and ability of each of
the parties to facilitate and encourage a close and
continuing parent-child relationship between the
child and the other parent or the child and the
parents.
(k) Domestic violence, regardless of whether
the violence was directed against or witnessed by
the child.
(l) Any other factor considered by the court
to be relevant to a particular child custody
dispute.
These factors are applicable in the grandparent visitation
context.
MCL 722.23 states, “As used in this act, “best
interests of the child” means the sum total of the following
factors . . . .” (Emphasis added.)
“This act” refers to the
Michigan Child Custody Act of 1970.
The grandparent
visitation statute, MCL 722.27b, is part of “this act.”
7
possible
to
draft
a
statute
that
would
constitutional concerns expressed in Troxel.7
address
the
I urge the
7
The Troxel Court declined to address “whether the Due
Process Clause requires all nonparental visitation statutes to
include a showing of harm or potential harm to the child as a
condition precedent to granting visitation.” Troxel, supra at
73. Because the Troxel Court did not indicate whether it was
necessary to demonstrate that the child would be harmed if
grandparent visitation were not granted, I express no opinion
regarding whether a statute must require such a showing before
it can be found constitutional. I do note that some states
have built such a requirement into their statutes.
In
Tennessee, for example, the statute states:
In considering a petition for grandparent
visitation, the court shall first determine the
presence of a danger of substantial harm to the
child. Such a finding of substantial harm may be
based upon cessation of the relationship between an
unmarried minor child and the child’s grandparent
if the court determines, upon proper proof, that:
(A) The child had such a significant existing
relationship with the grandparent that loss of the
relationship is likely to occasion severe emotional
harm to the child;
(B) The grandparent functioned as a primary
caregiver such that cessation of the relationship
could interrupt provision of the daily needs of the
child and thus occasion physical or emotional harm;
or
(C) The child had a significant existing
relationship with the grandparent and loss of the
relationship presents the danger of other direct
and substantial harm to the child. [Tenn Code Ann
36-6-306(b)(1).]
See also Ga Code Ann 19-7-3(c). As stated in n 2, the New
Jersey Supreme Court read this requirement into its statute.
Again, I note that Troxel declined to state that such a
showing of harm to the child was required per se to alleviate
(continued...)
8
Legislature
to
revise
Michigan’s
grandparent
visitation
statute to alleviate the constitutional flaws in the statute.8
Elizabeth A. Weaver
7
(...continued)
concerns of substantive due process. I cite these statutes
requiring a finding of harm for informational purposes only.
8
I note that two House bills were introduced on January
29, 2003, to amend provisions relating to grandparent
visitation: House Bill 4104 and House Bill 4105.
See
“Michigan Legislature,” www.michiganlegislature.org.,
July
22, 2003.
However, these amendments do not address the
constitutional concerns discussed in this opinion.
9
S T A T E
O F
M I C H I G A N
SUPREME COURT
THERESA O'DAY DeROSE,
also known as THERESA SEYMOUR,
Plaintiff/Third-Party Defendant
Appellee,
v
No. 121246
JOSEPH ALLEN DeROSE,
Defendant-Appellee,
v
CATHERINE DeROSE,
Third-Party Plaintiff
Appellant.
___________________________________
KELLY, J. (dissenting).
The issue in this case is whether Michigan's grandparent
visitation statute1 is constitutional, either as written or as
applied by the trial court.
The Court of Appeals held the
statute unconstitutional as written, relying on the United
States Supreme Court opinion in Troxel v Granville, 530 US 57;
1
MCL 722.27b.
120 S Ct 2054; 147 L Ed 2d 49 (2000).
249 Mich 388; 643 NW2d
259 (2002).
Today, the majority affirms that decision.
However, it
bases its analysis on an interpretation of Troxel that is
inaccurate and it operates from the premise that Justice
O'Connor,
who
authored
the
Troxel
misunderstood her own opinion.
Michigan's
grandparent
plurality
opinion,
Moreover, in interpreting
visitation
statute,
the
majority
invokes fundamental methods of statutory construction, but in
application abandons those principles.
While not joining the majority, I do agree that the trial
court's
visitation
order
and
impermissibly
liberty
interests
infringed
in
raising
Mrs.
Seymour's
privacy
her
children.
Accordingly, I would affirm the Court of Appeals
vacation of the trial court's order granting visitation.
However, I would reverse the Court of Appeals holding that the
grandparent visitation statute is unconstitutional. Rather, I
would hold that it is the trial court's application of the
statute that is unconstitutional.
I. THE TROXEL DECISION
The
resolution
of
this
case
requires
a
careful
examination of the United States Supreme Court opinions in
Troxel v Granville, supra.
The Washington Supreme Court held
Washington's nonparental visitation statute unconstitutional.
2
On review, a plurality of the members of the United States
Supreme Court ruled that the trial court's application of the
statute
was
unconstitutional.
"We
.
.
.
hold
that
the
application of [the Washington statute] to Granville and her
family violated her due process right to make decisions
concerning the care, custody, and control of her daughters."
It
did
not
hold
that
the
statute
was
unconstitutional.
Troxel, 530 US 75.
Thus, the Court left unresolved whether the Washington
statute, or similar statutes in other states, could survive in
light of the Constitution's protections of the parent-child
relationship.
Because
the
Washington
Supreme
Court's
interpretation of the Washington statute was the subject of
the Troxel decision, it is important to review that statute
and understand how it was applied.
A. THE WASHINGTON
STATUTE AND THE OPINION OF THE
WASHINGTON SUPREME COURT
Section 26.10.160 of the Revised Code of Washington
provides, in relevant part:
(3) Any person may petition the court for
visitation rights at any time including, but not
limited to, custody proceedings. The court may
order visitation rights for any person when
visitation may serve the best interest of the child
whether or not there has been any change of
circumstances.
The facts in Troxel were that Tommie Granville and Brad
Troxel, although never married, had two daughters.
3
After
their relationship ended, Brad lived with his parents and
frequently brought his daughters to their home for weekend
visitations.
Two years after Tommie and Brad separated, Brad
committed suicide.
After his death, Tommie Granville allowed
Brad's parents extended visitation with the children.
Later,
however, she informed them that the visitation would be
limited to one short visit each month.
The grandparents, the Troxels, brought an action in
Washington state court for visitation rights pursuant to Wash
Rev
Code
statute.
26.10.160(3),
Washington's
nonparent
visitation
They requested two weekends of overnight visitation
per month and two weeks of visitation every summer.
Although
Granville did not oppose visitation altogether, she asked the
court to limit it to one day a month with no overnight
visitation.
In re Troxel, 87 Wash App 131, 133-134; 940 P2d
698 (1997).
The trial court entered an order permitting
visitation on one weekend a month, one week each summer, and
four hours on each of the grandparents' birthdays.
In re
Smith, 137 Wash 2d 1, 6; 969 P2d 21 (1998).
Granville appealed from this decision, and the Washington
Court of Appeals remanded for findings of fact and conclusions
of law. In re Smith, supra.
On remand, the trial court,
applying the state's best interests test, concluded that
visitation was in the best interests of the children.
4
Granville again appealed.
This time, the Washington
Court of Appeals reversed the trial court order and dismissed
the petition.
It held that nonparents lack standing under
Washington's nonparental visitation statute, unless a custody
action is pending. Having resolved the matter on the basis of
standing,
the
court
had
no
need
to
address
constitutional challenge to the statute.2
Granville's
In re Troxel, 87
Wash App 138.
The
Washington
Supreme
Court
granted
the
Troxels'
petition for review and consolidated their case with similar
cases.
It then affirmed the Washington Court of Appeals
decision on a separate basis.
It held that the Troxels had
standing to petition for visitation under the Washington act.
However, the act was unconstitutional because it impermissibly
infringed the fundamental rights of parents to raise their
children.
In reaching this conclusion, the Washington Supreme Court
stated that the act had at least two fatal flaws:
(1) it was
not limited to situations where there was actual or potential
harm to the child, which the Washington Supreme Court held
2
The court did state that this limitation on nonparental
visitation is "consistent with the constitutional restrictions
on state interference with parents' fundamental liberty
interest in the 'care, custody, and management' of their
children." In re Troxel, 87 Wash App 135, quoting Santosky v
Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982).
5
were the limits of legitimate state interference with parental
rights, and (2) because the statute allowed "any person" to
petition for visitation rights at "any time," it swept too
broadly.
In re Smith, 137 Wash 2d 15-21.
The Troxels brought a petition for certiorari to the
United
States
Supreme
Court.
The
Court
granted
it
and
affirmed the Washington Supreme Court in a plurality opinion
authored by Justice O'Connor.3
B. THE UNITED STATES SUPREME COURT
DECISION
A review of the various opinions of the justices is
helpful for the purpose of determining the consistent rule
among them, if any.
1. THE
OPINION OF THE
COURT
Justice O'Connor began the substantive portion of her
opinion by noting that demographic changes over the past
century
have
altered
traditional
notions
of
the
family.
Consequently, child rearing responsibilities frequently extend
beyond
immediate
family
members
to
grandparents.
In
recognition of this change, she noted, every state has adopted
a measure protecting the relationship between grandparents as
nontraditional caregivers and the children whose lives they
3
Justice O'Connor was joined in the opinion by Chief
Justice Rehnquist and Justices Ginsburg and Breyer. Justices
Souter and Thomas concurred on alternative bases. Justices
Stevens, Scalia, and Kennedy each authored dissents.
6
shape.
Troxel, 530 US 63-65.
While acknowledging that "third-party" relationships are
often beneficial to children, Justice O'Connor also recognized
that
nonparental
visitation
statutes
place
burden on the parent-child relationship.
a
substantial
Id. at 64.
Because
parents have a constitutionally protected interest in the
care, custody, and control of their children, these statutes
risk violating the Due Process Clause of the Fourteenth
Amendment.
Washington v Glucksburg, 521 US 702, 719-720; 117
S Ct 2258; 138 L Ed 2d 772 (1997); Reno v Flores, 507 US 292,
301-302; 113 S Ct 1439; 123 L Ed 2d 1 (1993).
Justice O'Connor relied on the Court's rich history of
protecting the parent-child relationship4 and concluded that
the trial court's application of the Washington nonparental
visitation statute was unconstitutional.
Troxel, 530 US 75.
She emphasized that the statute is broad in scope and that,
when applying it, the trial court had gone to the full extent
of the its language in entering the visitation order.
73-75.
Id. at
She noted concern that the order gave visitation that
4
See, e.g., Meyer v Nebraska, 262 US 390; 43 S Ct 625; 67
L Ed 1042 (1923); Pierce v Society of Sisters, 268 US 510; 45
S Ct 571; 69 L Ed 1070 (1925); Prince v Massachusetts, 321 US
158; 64 S Ct 438; 88 L Ed 645 (1944); Stanley v Illinois, 405
US 645; 92 S Ct 1208; 31 L Ed 2d 551 (1972); Wisconsin v
Yoder, 406 US 205; 92 S Ct 1526; 32 L Ed 2d 15 (1972);
Quilloin v Walcott, 434 US 246; 98 S Ct 549; 54 L Ed 2d 511
(1978); Parham v J R, 442 US 584; 99 S Ct 2493; 61 L Ed 2d 101
(1979); Santosky, supra.
7
exceeded Granville's wishes even though (1) Granville had
allowed limited visitation to the Troxels, (2) there was no
indication
that
Granville
was
an
unfit
parent,
and
(3)
Granville had made her own legitimate determination of the
child's best interests.
2. THE
Id. at 68-72.
CONCURRING OPINIONS
Justice Souter concurred in the result and in a portion
of
Justice
O'Connor's
reasoning.
He
opined
that
the
Washington Supreme Court's invalidation of the statute was
consistent with the Court's jurisprudence on substantive due
process.
Troxel, 530 US 75-76.
He relied on the fact that
the Washington Supreme Court had construed the statute to
allow any person to petition for visitation at any time,
subject only to a court's unfettered discretion.
Justice
Souter differed from Justice O'Connor in that he would have
held that the Washington Supreme Court's interpretation of the
statute was conclusive.
Thus, the statute was overbroad
because it did not limit the discretion of the lower courts.
As a consequence, it was invalid in all its applications. Id.
at 77-79, citing Chicago v Morales, 527 US 41, 71; 119 S Ct
1849; 144 L Ed 2d 67 (1999).
Justice Thomas concurred only in the result of the
plurality opinion.
He stated that, because the Court had
found a fundamental interest, strict scrutiny must apply and,
8
under that standard, the statute was invalid.
Troxel, 530 US
80.
3. THE
DISSENTING OPINIONS
With one exception, the dissenting justices did not argue
that a different result was warranted.
Rather, Justices
Stevens and Kennedy would have vacated the Washington Supreme
Court decision because the opinion itself was too broad.
Common
to
arbitrariness.
that
the
Due
both
these
opinions
is
a
focus
on
Justice Stevens and Justice Kennedy agreed
Process
Clause
forbids
unreasonable
intrusion into the parent-child relationship.
state
Both justices
agreed that, at some point, a parental decision might become
so arbitrary that judicial intrusion is warranted.
The question for these justices was whether the best
interests test, standing alone, is a sufficient indicator of
arbitrariness. Because the Washington Supreme Court failed to
address this issue, Justices Stevens and Kennedy would have
vacated the Washington Supreme Court decision and remanded the
case for further findings.
Justice Scalia took a different approach.
that,
while
a
parent's
interest
in
directing
He argued
a
child's
upbringing is among the unalienable rights retained by the
9
people,5 the right is not enumerated in the Constitution.
Accordingly, while a state may have no legitimate power to
curtail the right, the Court has no power to enforce it.
Justice Scalia would have reversed the Washington Supreme
Court decision to the extent that it relied on the Due Process
Clause of the Fourteenth Amendment in holding the Washington
statute invalid.
4. THE
The
Troxel
COMPOSITE OPINION
plurality
decision
reconciliation in, at least, one respect.
is
capable
of
With one justice
dissenting and one concurring in the result only, the Court
held that the Due Process Clause of the Fourteenth Amendment
protects
children.
parents'
fundamental
interest
in
raising
their
Thus, a state may not unduly interfere in the
parent-child relationship.
At a minimum, state interference
in the relationship is not permitted unless a parent has made
a decision regarding visitation that is not in the child’s'
best interests.
II. APPLICATION
Determining whether the Michigan grandparent visitation
statute is constitutional requires the following analysis:
First, the fundamental interest at stake should be defined.
Second, the statute should not infringe this interest. Third,
5
See US Const, Am IX.
10
if it infringes, a strict scrutiny test must be applied to it.
In applying this analysis, we attempt to give effect to
legislative intent.
Omelenchuk v City of Warren, 466 Mich
524, 528; 647 NW2d 493 (2002).
When we review a statute on the basis of a constitutional
challenge,
we
begin
constitutional.
with
a
presumption
that
it
is
Taylor v Gates Pharmaceuticals, 468 Mich 1,
6; 658 NW2d 127 (2003).
constitutionality,
To overcome the presumption of
the
party
challenging
the
facial
constitutionality of the act "must establish that no set of
circumstances exists under which the act would be valid.
The
fact that the . . . act might operate unconstitutionally under
some conceivable set of circumstances is insufficient . . . ."
Straus v Governor, 459 Mich 526, 543; 592 NW2d 53 (1999),
quoting United States v Salerno, 481 US 739, 745; 107 S Ct
2095; 95 L Ed 2d 697 (1987).
Moreover,
we
have
a
duty
to
construe
a
statute
as
constitutional, unless its unconstitutionality is clearly
apparent.
Taylor,
supra.
Beyond
the
question
of
constitutionality, it is not our province to inquire into the
wisdom
of
the
Organizations
&
legislation.
Others
for
Id.,
Ed
About
citing
Council
Parochiaid,
Governor, 455 Mich 557, 570; 566 NW2d 208 (1997).
11
Inc
of
v
A. THE
NATURE OF THE RIGHT INVOLVED
The fundamental interest at stake in this case is the
parent-child relationship.
There can be
no doubt that parents have a fundamental liberty
interest in caring for and guiding their children,
and
a
corresponding
privacy
interest—absent
exceptional circumstances—in doing so without the
undue interference of strangers to them and to
their child.
[Troxel, 530 US 87 (opinion of
Stevens, J.).]
"It is cardinal . . . that the custody, care and nurture
of the child reside first in the parents . . . ."
Prince v
Massachusetts, 321 US 158, 166; 64 S Ct 438; 88 L Ed 645
(1944).
Thus,
[i]t is plain that the interest of a parent in the
companionship, care, custody, and management of his
or her children "come[s] . . . with a momentum for
respect lacking when appeal is made to the
liberties which derive merely from shifting
economic arrangements." [Stanley v Illinois, 405
US 645, 651; 92 S Ct 1208; 31 L Ed 2d 551 (1972),
citing Kovacs v Cooper, 336 US 77, 95; 69 S Ct 448;
93 L Ed 513 (1949) (Frankfurter, J, concurring).]
Because the Constitution recognizes this fundamental
interest, a presumption has been created that the "natural
bonds of affection lead parents to act in the best interests
of their children."
Parham v J R, 442 US 584, 602; 99 S Ct
2493; 61 L Ed 2d 101 (1979).
Consequently, a state interest
will rarely be sufficiently compelling to override parents'
legitimate
decisions
regarding
management of their children.
12
the
care,
custody,
or
B. MICHIGAN 'S GRANDPARENT VISITATION STATUTE
Michigan's grandparent visitation statute states:
(1) Except as provided in this subsection, a
grandparent of the child may seek an order for
grandparenting time in the manner set forth in this
section only if a child custody dispute with
respect to that child is pending before the court.
If a natural parent of an unmarried child is
deceased, a parent of the deceased person may
commence an action for grandparenting time.
Adoption of the child by a stepparent under [MCL
710.21 to 710.70] does not terminate the right of a
parent of the deceased person to commence an action
for grandparenting time.
(2) As used in this section, "child custody
dispute" includes a proceeding in which any of the
following occurs:
(a) The marriage of the child's parents is
declared invalid or is dissolved by the court, or a
court enters a decree of legal separation with
regard to the marriage.
(b) Legal custody of the child is given to a
party other than the child's parent, or the child
is placed outside of and does not reside in the
home of a parent, excluding any child who has been
placed for adoption with other than a stepparent,
or whose adoption by other than a stepparent has
been legally finalized.
(3) A grandparent seeking a grandparenting
time
order
may
commence
an
action
for
grandparenting time, by complaint or complaint and
motion for an order to show cause, in the circuit
court in the county in which the grandchild
resides. If a child custody dispute is pending, the
order shall be sought by motion for an order to
show cause. The complaint or motion shall be
accompanied by an affidavit setting forth facts
supporting the requested order. The grandparent
shall give notice of the filing to each party who
has legal custody of the grandchild. A party having
legal custody may file an opposing affidavit. A
hearing shall be held by the court on its own
13
motion or if a party so requests. At the hearing,
parties submitting affidavits shall be allowed an
opportunity to be heard. At the conclusion of the
hearing, if the court finds 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. If a hearing is not held, the
court shall enter a grandparenting time order only
upon a finding that grandparenting time is in the
best interests of the child. A grandparenting time
order shall not be entered for the parents of a
putative father unless the father has acknowledged
paternity in writing, has been adjudicated to be
the father by a court of competent jurisdiction, or
has contributed regularly to the support of the
child or children. The court shall make a record of
the
reasons
for
a
denial
of
a
requested
grandparenting time order.
(4) A grandparent may not file more than once
every 2 years, absent a showing of good cause, a
complaint or motion seeking a grandparenting time
order. If the court finds there is good cause to
allow a grandparent to file more than 1 complaint
or motion under this section in a 2-year period,
the court shall allow the filing and shall consider
the complaint or motion. The court may order
reasonable attorney fees to the prevailing party.
(5) The court shall not enter an order
restricting the movement of the grandchild if the
restriction is solely for the purpose of allowing
the grandparent to exercise the rights conferred in
a grandparenting time order.
(6) A grandparenting time order entered in
accordance
with
this
section
shall
not
be
considered to have created parental rights in the
person or persons to whom grandparenting time
rights are granted. The entry of a grandparenting
time order shall not prevent a court of competent
jurisdiction from acting upon the custody of the
child, the parental rights of the child, or the
adoption of the child.
(7) The court may enter an order modifying or
14
terminating a grandparenting time order whenever
such a modification or termination is in the best
interests of the child. [MCL 722.27b.]
It
is
Michigan's
evident
that,
grandparent
like
the
visitation
Washington
statute
statute,
infringes
the
parents' liberty interest in directing the upbringing of their
children. It does this by allowing third parties to insert
themselves into the relationship over a parent's objection.
Thus, if the statute is allowed to stand, it must pass the
strict scrutiny test.
C. APPLICATION
OF STRICT SCRUTINY TO THE STATUTE
In order to meet strict scrutiny, a statute must be
narrowly tailored to serve a compelling governmental interest.
In
the
realm
of
fundamental
substantial weight.
rights,
this
test
takes
on
The very concept of a liberty interest
presumes that there are few, if any, governmental interests
that will meet this burden.
Moreover, a court's application
of an otherwise valid statute is invalid if it extends beyond
the limits of constitutional authority.
The
statute
majority
cannot
holds
that
withstand
our
grandparent
constitutional
visitation
scrutiny.
Specifically, it rules that the unconstitutionality lies in
its failure to "accord deference to the decisions of fit
parents regarding grandparent visitation."
Ante at 15.
It is apparent to me that this conclusion rests on an
15
unnecessarily
strict
interpretation
of
the
statute.
It
violates the principle that "'[a] text should not be construed
strictly, and it should not be construed leniently; it should
be construed reasonably to contain all that it fairly means.'"
Corrigan
&
Thomas,
"Dice
Loading"
Rules
of
statutory
interpretation, 59 NYU Ann Surv Am L 231, 231-232 (2003),
quoting Scalia, A Matter of Interpretation: Federal Courts and
the Law (Princeton, N.J.:
Princeton University Press, 1997),
p 23.
1. FACIAL
a. COMPELLING
VALIDITY
GOVERNMENT INTEREST
"A democratic society rests, for its continuance, upon
the healthy, well-rounded growth of young people into full
maturity as citizens . . . ."
Prince v Massachusetts, 321 US
158, 168; 64 S Ct 438; 88 L Ed 645 (1944).
Accordingly, "[i]t
is evident beyond the need for elaboration that a State's
interest in 'safeguarding the physical and psychological well
being of a minor' is 'compelling.'" New York v Ferber, 458 US
747, 756-757; 102 S Ct 3348; 73 L Ed 2d 1113 (1982), quoting
Globe Newspaper Co v Superior Court, 457 US 596, 607; 102 S Ct
2613; 73 L Ed 2d 248 (1982).
Therefore, we may sustain
legislation aimed at protecting the physical and emotional
well-being of youth even when the legislation impinges on
constitutionally protected rights.
16
Ferber, supra at 757.
Our grandparent visitation statute is meant to protect
children's well-being by providing for visitation when it is
in their best interests.
Thus, the statute must be upheld if
it is narrowly tailored to address this compelling interest.
b. NARROWLY
TAILORED
By its terms, the Michigan grandparent visitation statute
is substantially more narrow than the Washington statute. For
instance,
the
Washington
statute
allowed
any
person
the
ability to bring a petition for visitation at any time.
By
contrast, the Michigan statute allows only grandparents to
petition for visitation and only under circumstances where a
prior disturbance in the parent-child relationship limits the
effect of the intrusion. The Legislature allows court-ordered
nonparental visitation only where (1) the relationship between
the
child
and
the
petitioner
is
that
of
grandchild
grandparent, and (2) the petition for visitation is made
during the pendency of a child custody dispute or the natural
parent of the unmarried child is deceased.
The crucial fact in this case is that the Michigan
statute,
like
the
Washington
statute,
employs
a
best
interests-of-the-child standard to determine whether a court
should issue a visitation order.
The inclusion of this
standard constituted the ultimate flaw in the Washington
statute; once a petition was properly before a Washington
17
court,
the
act
gave
the
judge
unfettered
determine whether to award visitation.6
discretion
to
Thus, I would agree
with the majority that, unless our Legislature has otherwise
limited our trial courts' discretion in awarding visitation to
grandparents, we must hold the statute unconstitutional.
The majority is apparently persuaded by the argument that
the statute includes a presumption in favor of awarding
grandparent visitation.
Ante, at 15, n 10.
However, this
interpretation runs afoul of the basic tenet that a statute is
presumed constitutional. The majority incorrectly states that
the statute does not require a trial court to justify its
decision to award grandparent visitation with any factual
findings or analysis.
To the contrary, the statute forbids a
court from entering a grandparent visitation order unless it
"finds that it is in the best interests of the child . . . ."
MCL 722.27b(3).
Under our court rules, the court must place
its findings of fact and conclusions of law on the record.
MCR 3.210(D) and 2.517(A)(1).
The
Michigan
statute
does
not
include
the
most
restrictive terms possible, but it need not do so to pass
constitutional
muster.
Indeed,
6
a
statute
may
be
Unlike the Michigan grandparent visitation statute, the
Washington statute never defined the factors to consider
before a court could find that a visitation order is in the
"best interests of the child."
18
constitutional even though it lacks provisions that meet
constitutional requirements.
As long as it has terms not
excluding such requirements, a court is justified in finding
that constitutional requirements are embodied in the statute.
Council of Organizations, 455 Mich 569, quoting 16 Am Jur 2d,
Constitutional Law, § 225, p 659.
Moreover, the grandparent visitation statute does not
exist in a vacuum.
It is part of an extensive statutory
scheme, the Child Custody Act of 1970,7 that guides the
resolution
of
disputes
regarding
custody
and
visitation
rights. The grandparent visitation statute cannot properly be
interpreted without reference to applicable provisions of the
Child Custody Act.
Cf. Arrowhead Dev Co v Livingston Co Rd
Comm, 413 Mich 505, 516; 322 NW2d 702 (1982).
Specifically,
the grandparent visitation statute must be read in conjunction
with MCL 722.23 and MCL 722.25, which contain the state's best
interests standard.
Of particular importance is MCL 722.23(l), which requires
that courts take into account any unnamed factor relevant to
a dispute.
One such factor always present in grandparent
visitation disputes must be the constitutional rights of the
7
MCL 722.21 et seq.
19
parents.8
Additionally, MCL 722.25 works collectively with MCL
722.23
to
protect
parents'
constitutional
rights.
MCL
722.25(1) provides that
[i]f a child custody dispute is between the
parents, between agencies, or between third
persons, the best interests of the child control.
If the child custody dispute is between the parent
or parents and an agency or a third person, the
court shall presume that the best interests of the
child are served by awarding custody to the parent
or parents, unless the contrary is established by
clear and convincing evidence.
This
analysis
supports
the
conclusion
that
our
grandparent visitation statute is drawn more narrowly than the
statute at issue in Troxel.
It also demonstrates that, in
drafting the statute, our Legislature was concerned with
protecting parents' fundamental interest in raising their
children.
Accordingly, when the Legislature enacted the grandparent
visitation statute, it saw fit to explicitly require that
trial courts give deference to a fit parent's decisions
regarding grandparent visitation.
The majority's argument
that the provisions requiring deference are inapplicable in
the context of grandparent visitation are untenable.
8
The
See Winekoff v Pospisil, 384 Mich 260, 267-268; 181 NW2d
897 (1970), quoting Lake Shore & M S R Co v Miller, 25 Mich
274, 291-292 (1872)("[C]ourts are bound judicially to know and
apply such laws and principles as part of the law of the
land.").
20
Legislature
resolved
this
issue
by
including
grandparent
visitation within the gamut of custody disputes.9
Therefore,
because
compelling
it
is
narrowly
tailored
to
serve
a
governmental interest, the statute is constitutional.
2. THE
Although
I
TRIAL COURT 'S APPLICATION OF THE STATUTE
believe
that
the
grandparent
visitation
statute is valid, the visitation order must be overturned
because it unduly infringes Mrs. Seymour's constitutionally
protected interest in raising her children.
The record
indicates that the order far exceeded the discretion that the
Legislature gave the trial court. The basis for the order was
the court's conclusion that "grandmothers are very important."
This statement shows that the trial court's decision involved
"nothing more than a simple disagreement between the [trial
court and Theresa DeRose] concerning her children's best
interests."
9
Troxel, 530 US 72 (opinion of O'Connor, J.);
MCL 722.27(1) provides in pertinent part:
If a child custody dispute has been submitted
to the circuit court as an original action under
this act or has arisen incidentally from another
action in the circuit court or an order or judgment
of the circuit court, for the best interests of the
child the court may do 1 or more of the following:
* * *
(f)
Upon
petition
consider
the
reasonable
grandparenting time of maternal or paternal
grandparents as provided in section 7b . . . .
21
Parham, 442 US 603.10
Moreover, this case is less difficult than was Troxel.
Here,
Mrs.
Seymour
not
only
made
a
legitimate
decision
concerning her child, she demonstrated that she made the
decision to protect the integrity of her family.
Had Mrs.
DeRose been allowed to continue visitation with Mrs. Seymour’s
daughter, she could have continued to tell the child that Mrs.
Seymour’s ex-husband was not guilty of sexually abusing the
child's sister.
The potential harm to both children is a
legitimate concern.
Mrs. DeRose has failed to demonstrate that Mrs. Seymour's
10
Compare this statement with those made by the trial
court in Troxel:
The burden is to show that it is in the best
interest of the children to have some visitation
and some quality time with their grandparents. I
think in most situations a commonsensical approach
[is that] it is normally in the best interest of
the children to spend quality time with the
grandparent, unless the grandparent, [sic] there
are some issues or problems involved wherein the
grandparents, their lifestyles are going to impact
adversely upon the children. That certainly isn't
the case here from what I can tell.
* * *
I look back on some personal experiences . . .
. We always spent as kids a week with one set of
grandparents and another set of grandparents, [and]
it happened to work out in our family that [it]
turned out to be an enjoyable experience. Maybe
that can, in this family, if that is how it works
out. [Troxel, 530 Us 69, 72.]
22
decision was not in the best interests of her children.
The
evidence demonstrated that Mrs. Seymour’s concern for the
integrity of her family motivated her decision.
This concern
is the basis of the liberty interest at stake in this case.
See Caban v Mohammed, 441 US 380, 397; 99 S Ct 1760; 60 L Ed
2d 297 (1979); Lehr v Robertson, 463 US 248, 260-261; 103 S Ct
2985; 77 L Ed 2d 614 (1983); Michael H v Gerald D, 491 US 110,
123; 109 S Ct 2333; 105 L Ed 2d 91 (1989).
Accordingly, I
would hold that the visitation order is an unconstitutional
abuse of the discretion granted it by the Michigan grandparent
visitation statute.
CONCLUSION
Parents' fundamental right to control the upbringing of
their children is protected by the Due Process Clause of the
Fourteenth Amendment.
The state may not interfere with this
right unless the means of interference are narrowly tailored
to serve a compelling governmental interest.
It is beyond dispute that our grandparent visitation
statute
serves
a
compelling
governmental
interest.
It
promotes the well-being of our children by allowing visitation
between children and grandparents when visitation is in the
best interests of the children.
Thus, the statute must be
upheld if it is narrowly tailored to serve this interest.
I
believe
that
the
Michigan
23
grandparent
visitation
statute is sufficiently narrow in scope to meet this standard.
As opposed to the statute under scrutiny in Troxel, the
Michigan statute allows only grandparents to petition our
courts for nonparental visitation.
Also, the only occasions
when grandparents may be granted visitation against a parent's
wishes are during the pendency of a child custody dispute or
after the death of a natural parent.
Moreover, the Child Custody Act is written to protect
parents'
fundamental
interest
in
raising
their
children.
Under it, grandparents obtain visitation only if they can
prove, by clear and convincing evidence, that a parent's
decision regarding visitation is not in the best interests of
the children.
court
can
interests.
Additionally, the act limits the discretion a
exercise
in
determining
the
children's
best
Therefore, it is narrowly tailored.
However, the trial court's finding that grandmothers are
important is insufficient to support the order issued in this
case.
"[T]he Due Process Clause does not permit a State to
infringe
on
the
fundamental
right
of
parents
to
make
childrearing decisions simply because a state judge believes
a 'better' decision could be made."
Id. at 72-73.
In this case, the trial court substituted its opinion
concerning the value of grandparent visitation for that of
Mrs.
Seymour.
The
trial
court
24
overrode
Mrs.
Seymour's
legitimate decision concerning the upbringing of her children
without finding clear and convincing evidence on the basis of
the best interest factors. Consequently, the visitation order
was an undue burden on the relationship between Mrs. Seymour
and her daughters.
In the end, I differ significantly with the majority in
my interpretation of the grandparent visitation statute.
In
my opinion the majority has ignored the text of the Child
Custody Act.
It has chosen instead to follow the example of
the Washington Supreme Court by needlessly illegitimizing our
grandparent visitation statute.
Moreover, it has failed to
provide the Legislature with guidance in drafting a statute
that the Court could find constitutional.
Because it is clear to me that the visitation order was
unconstitutional, I would affirm the decision of the Court of
Appeals to vacate it.
Troxel, 530 US 75.
However, I would
not find the grandparent visitation statute unconstitutional.
I would find, merely, that the trial court's application of
the statute was unconstitutional in this instance.
Marilyn Kelly
25
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