Michigan courts have held that parents have a constitutional right to have custody over their children. Whenever a grandparent wants custody of a child, he must first prove that the parents are unfit to have custody. Michigan courts judge issues of parental fitness in light of the "bests interests" test, meaning that they weigh any factors that impact the child's best interests. These can include the mental health of parents, their relationship with the child, their ability to raise the child, their moral fitness and any other factors that impact the child's life. Unless the grandparent can show that both parents are unfit, or that the only remaining parent is unfit, he will not be able to get custody.
If grandparents have been denied access to their grandchildren, they may petition for visitation if one of four circumstances is present: The first is if a divorce, separate maintenance or annulment is pending or has been finalized between the child's parents. The second is if the child was born out of wedlock and the parents are not cohabiting. In this situation, the grandparents of the father can only visit the child if the father is providing child support as ordered by the court. The third is if the child's custody has been awarded to someone other than the parent, or if the child doesn't live in the parent's home. The fourth is if the grandparents cared for the grandchild in the year preceding their petition. If none of these factors is present, or if both fit parents file an affidavit stating they do not want the grandparents to visit the children, the grandparent visitation petition will be denied.
When a Michigan court hears a grandparent visitation petition, the court must determine if the parent's decision to deny visitation harms the child. The grandparent filing the petition has the burden of proving by a preponderance of the evidence that the decision does cause emotional, mental or physical harm to the grandchild. If she is unable to show that, the court will deny the petition.
Guardianship and Emergency Custody
Sometimes, the courts will grant a grandparent guardianship rights to a grandchild. For example, if the parent becomes incarcerated, the courts may grant the grandparents guardianship rights to the child. They may also do this in emergency situations, such as if the parent falls into a serious illness or becomes otherwise incapacitated. However, this generally doesn't terminate a parent's rights. The parents can later petition the court for a termination of the guardianship, and as long as they are fit parents at that time, they will be able to get custody of the child back.
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