Child Custody: Paternal Grandmother vs Mother

This post examines child custody, grandparent visitation and the rights of a biological parent.

A recent child custody case from Livingston County pits a paternal grandmother against a mother. The Michigan Court of Appeals held that a Friend of the Court referee violated a mother’s constitutional right to make decisions for her child.

Sad Factual Background

The point of contention in the case, Zawilanski vs Marshall, involved a determination of grandparenting visitation by the Friend of the Court. The case has a very sad factual background.

When the child, born of wedlock, was just four months old, Mother suffered a traumatic brain injury in a car accident. She was in a coma for months.

The paternal grandmother began caring for the child; sadly, the child’s father died in 2014. As the mother’s condition improved, the Friend of the Court recommended a progressive parenting schedule vis-a-vie the grandmother.

As the parenting schedule pivoted toward the mother, grandmother petitioned for guardianship of the minor child along with expanded visitation. Grandmother prevailed, convincing the referee that she was the one constant in the child’s life.

The family court judge ordered grandmother to have visitation equivalent to a non-custodial parent; Mother appealed.

Ruling on Appeal

Reversing the family court, the Michigan Court of Appeals held in favor of the Plaintiff-Mother:

Further, the referee’s finding that petitioner overcame the fit-parent presumption ignores the fact that plaintiff agrees in principle that petitioner should have grandparenting time, and proposed a grandparenting-time schedule, albeit one that recommended less grandparenting time than petitioner was currently enjoying. Thus, given that plaintiff was denying some, but not all, grandparenting time, in order to overcome the fit-parent presumption, petitioner had to show that plaintiff’s denial of the amount of grandparenting time that exceeded her recommendation created a substantial risk of harm to the child. No evidence was presented on this question.

This ruling carefully balances the interests of both mother and grandmother. In our opinion, the Court of Appeals correctly found that balance in mother’s favor.

The paternal grandmother will not lose her connection with the minor child; the child still has the benefit of consistent visitation with her grandmother; but the biological mother, now adequately recovered from her TBI, can properly exercise her constitutional right to make decisions regarding the care, custody and management of her child.

We Can Help

If you or a family member have grandparent visitation issues, contact our law firm to schedule a free consultation.