Bill Text: MI SB0101 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Family law; friend of the court; reference to domestic relations mediation in child custody act; revise to reflect amendment to friend of the court act. Amends sec. 7b of 1970 PA 91 (MCL 722.27b). TIE BAR WITH: SB 0099'09
Spectrum: Partisan Bill (Republican 2-0)
Status: (Engrossed - Dead) 2009-02-10 - Referred To Committee On Families And Children's Services [SB0101 Detail]
Download: Michigan-2009-SB0101-Engrossed.html
SB-0101, As Passed Senate, February 10, 2009
SENATE BILL No. 101
January 28, 2009, Introduced by Senators JANSEN and HARDIMAN and referred to the Committee on Families and Human Services.
A bill to amend 1970 PA 91, entitled
"Child custody act of 1970,"
by amending section 7b (MCL 722.27b), as amended by 2006 PA 353.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 7b. (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
by the completion of an acknowledgment of parentage under the
acknowledgment of parentage act, 1996 PA 305, MCL 722.1001 to
722.1013, by an order of filiation entered under the paternity act,
1956 PA 205, MCL 722.711 to 722.730, or by a determination by a
court of competent jurisdiction that the individual is the father
of the child.
(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.
(2) A court shall not permit a parent of a father who has
never been married to the child's mother to seek an order for
grandparenting time under this section unless the father has
completed an acknowledgment of parentage under the acknowledgment
of parentage act, 1996 PA 305, MCL 722.1001 to 722.1013, an order
of filiation has been entered under the paternity act, 1956 PA 205,
MCL 722.711 to 722.730, or the father has been determined to be the
father by a court of competent jurisdiction. The court shall not
permit the parent of a putative father to seek an order for
grandparenting time unless the putative father has provided
substantial and regular support or care in accordance with the
putative father's ability to provide the support or care.
(3) A grandparent seeking a grandparenting time order shall
commence an action for grandparenting time, as follows:
(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 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. In determining the best interests of the child under
this subsection, the court shall consider all of the following:
(a) The love, affection, and other emotional ties existing
between the grandparent and the child.
(b) The length and quality of the prior relationship between
the child and the grandparent, the role performed by the
grandparent, and the existing emotional ties of the child to the
grandparent.
(c) The grandparent's moral fitness.
(d) The grandparent's mental and physical health.
(e) The child's reasonable preference, if the court considers
the child to be of sufficient age to express a preference.
(f) The effect on the child of hostility between the
grandparent and the parent of the child.
(g) The willingness of the grandparent, except in the case of
abuse or neglect, to encourage a close relationship between the
child and the parent or parents of the child.
(h) Any history of physical, emotional, or sexual abuse or
neglect of any child by the grandparent.
(i) Whether the parent's decision to deny, or lack of an offer
of, grandparenting time is related to the child's well-being or is
for some other unrelated reason.
(j) Any other factor relevant to the physical and
psychological well-being of the child.
(7) If the court has determined that a grandparent has met the
standard for rebutting the presumption described in subsection (4),
the court may refer that grandparent's complaint or motion for
grandparenting
time filed under subsection (3) to domestic
relations
mediation alternative dispute
resolution as provided by
supreme court rule. If the complaint or motion is referred to the
friend
of the court mediation service for
alternative dispute
resolution and no settlement is reached through friend of the court
mediation
alternative dispute
resolution within a reasonable time
after the date of referral, the complaint or motion shall be heard
by the court as provided in this section.
(8) A grandparent may not file more than once every 2 years,
absent a showing of good cause, a complaint or motion under
subsection (3) 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. Upon motion of a person, the court may order reasonable
attorney fees to the prevailing party.
(9) The court shall not enter an order prohibiting an
individual who has legal custody of a child from changing the
domicile of the child if the prohibition is primarily for the
purpose of allowing a grandparent to exercise the rights conferred
in a grandparenting time order entered under this section.
(10) A grandparenting time order entered under this section
does not create parental rights in the individual or individuals to
whom grandparenting time rights are granted. The entry of a
grandparenting time order does 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.
(11) A court shall not modify or terminate a grandparenting
time order entered under this section unless it finds by a
preponderance of the evidence, on the basis of facts that have
arisen since entry of the grandparenting time order or were unknown
to the court at the time it entered that order, that a change has
occurred in the circumstances of the child or his or her custodian
and that a modification or termination of the existing order is
necessary to avoid creating a substantial risk of harm to the
mental, physical, or emotional health of the child. A court
modifying or terminating a grandparenting time order under this
subsection shall include specific findings of fact in its order in
support of its decision.
(12)
The A court shall make a record of its analysis and
findings under subsections (4), (6), (8), and (11), including the
reasons for granting or denying a requested grandparenting time
order.
(13) Except as otherwise provided in this subsection, adoption
of a child or placement of a child for adoption under the Michigan
adoption code, chapter X of the probate code of 1939, 1939 PA 288,
MCL 710.21 to 710.70, terminates the right of a grandparent to
commence an action for grandparenting time with that child.
Adoption of a child by a stepparent under the Michigan adoption
code, chapter X of the probate code of 1939, 1939 PA 288, MCL
710.21 to 710.70, does not terminate the right of the parent of a
deceased parent of the child to commence an action for
grandparenting time with that child.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 99
of the 95th Legislature is enacted into law.
