Brinkley v. Brinkley

742 N.W.2d 629, 277 Mich. App. 23
CourtMichigan Court of Appeals
DecidedOctober 16, 2007
DocketDocket No. 269725
StatusPublished
Cited by18 cases

This text of 742 N.W.2d 629 (Brinkley v. Brinkley) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brinkley v. Brinkley, 742 N.W.2d 629, 277 Mich. App. 23 (Mich. Ct. App. 2007).

Opinion

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.

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’ [26]*26motion for relief from the order denying them grand-parenting 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.
[27]*27(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.
[28]*28(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.

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

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Cite This Page — Counsel Stack

Bluebook (online)
742 N.W.2d 629, 277 Mich. App. 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brinkley-v-brinkley-michctapp-2007.