Frame v. Nehls

550 N.W.2d 739, 452 Mich. 171

• Court: Michigan Supreme Court
• Decided: July 3, 1996
• Docket: 102139, Calendar No. 11
• Status: Published

Opinions

Boyle, J.

In this case, we interpret MCL 722.27b; MSA 25.312(7b), the section of the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., that involves the right of grandparents to seek visitation of their grandchildren.¹ We granted leave to determine whether the grandparent visitation statute entitles appellee to seek court-ordered visitation, and whether it unconstitutionally deprives appellee-grandfather equal protection of the law.

The Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., does not authorize an order of visitation because the grandchild’s father is not deceased, and the father is not involved in a child custody dispute as defined under MCL 722.27b(2); MSA 25.312(7b)(2). The relevant section of the statute leaves the decision to allow grandparent visitation to the discretion of the parents of the grandchild, whether they are married or unmarried, as long as the parents are living and at least one parent has custody of the grandchild. The one instance in which the statute treats grandparents differently, depending on whether the living child through whom the grandparent claims standing has married the other parent of the grandchild, focuses on the parents’ marital status with respect to the grandparents.

The classification created involves neither a suspect class, nor a fundamental right, is rationally related to a legitimate government purpose, and does not violate equal protection. The decision of the Court of Appeals is reversed.²

Dustin Nehls was bom on March 21, 1991. At the time of Dustin’s birth, plaintiff Gina Frame, his mother, was unmarried and living with defendant Jay Nehls. When plaintiff and defendant ended their relationship, plaintiff filed a complaint in the Kalamazoo Circuit Court to determine paternity. The complaint alleged that defendant, Jay Nehls, was the father. Defendant admitted paternity of Dustin. The circuit court entered an order of filiation, awarding plaintiff custody and awarding defendant regular visitation. Appellee, Stephen Nehls, Dustin’s paternal grandfather, then petitioned the circuit court for visitation.

Plaintiff moved for summary disposition of appel-lee’s petition on the basis of the Court of Appeals decision in Nelson v Kendrick, 187 Mich App 367; 466 NW2d 402 (1991). Nelson held that a complaint for determination of paternity does not constitute a “child custody dispute” within the meaning of the grandparent visitation statute. The trial court granted plaintiff’s motion.

Appellee appealed, and the Court of Appeals reversed. 208 Mich App 412; 528 NW2d 773 (1995). The Court reasoned that the grandparent visitation statute violated the Equal Protection Clause under the federal and state constitutions. US Const, Am XIV; Const 1963, art 1, § 2. It had determined that Nelson was not binding because that Court did not address a statutory section in the grandparent visitation statute that the Court in Frame believed was necessary for the full resolution of the issue.

We granted plaintiffs application for leave to appeal to determine the scope, as well as the constitutionality, of the grandparent visitation statute. 449 Mich 851 (1995).

THE STATUTORY CLAIM

The familiar interpretive principles need no citation. The goal of statutory construction is to effect the intent of the Legislature. If the statute is clear, we enforce its directive. Judicial construction is authorized only where a statute is unclear and susceptible to more than one interpretation.

The legislative purpose behind the Child Custody Act is to “promote the best interests and welfare of children.” Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889 (1994). The act directs that it is “equitable in nature and shall be liberally construed and applied to establish promptly the rights of the child and the rights and duties of the parties involved.” MCL 722.26(1); MSA 25.312(6)(1). Section 7b of the Child Custody Act deals specifically with grandparent visitation.³ MCL 722.27b(3); MSA 25.312(7b)(3). The grandparent visitation statute is consistent with the general purpose of the act, in that it permits a court to enter a grandparent visitation order “if the court finds that it is in the best interests of the child” to do so. MCL 722.27b(3); MSA 25.312(7b)(3). However, before such a determination may be made, the court must first resolve a threshold matter: whether the parties before it have standing. The Legislature has granted grandparents standing to petition for visitation of their grandchildren only in “carefully limited circumstances.”⁴ Subsection 1 of the grandparent visitation statute states:

Except as provided in this subsection, a grandparent of the child may seek an order for visitation 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 visitation. Adoption of the child by a stepparent . . . does not terminate the right of a parent of the deceased person to commence an action for visitation. [MCL 722.27b(l); MSA 25.312(7b)(l).]

This subsection announces the general rule that a grandparent has standing to seek visitation only if a child custody dispute is pending.⁵ An exception to this rule is created for cases in which the child of the grandparent (the parent of the grandchild) is deceased. This first subsection clearly and unambiguously presents the only two situations in which grandparent visitation can be sought.

Because Dustin’s father is alive, appellee, Dustin’s paternal grandfather, can only seek visitation if a “child custody dispute” involving Dustin is pending. Subsection two defines child custody dispute clearly and unambiguously. That subsection provides:

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. [MCL 722.27b(2); MSA 25.312(7b)(2) (emphasis added).]

Appellee argues that it is ambiguous whether the statute’s definition of “child custody dispute” should be read expansively or narrowly. He contends that liberal construction of the act and use of the word “includes” require that the definition of child custody dispute be read to embrace situations not specifically enumerated in §§ 2(a) and 2(b). A review of the text of the Child Custody Act, as well as the legislative history of the grandparent visitation statute, leads to the opposite result.

When used in the text of a statute, the word “includes” can be used as a term of enlargement or of limitation, and the word in and of itself is not determinative of how it is intended to be used. Belanger v Warren Bd of Ed, 432 Mich 575, 587, n 25; 443 NW2d 372 (1989). The term “child custody dispute,” or a variation thereof, is used in virtually every section of the Child Custody Act. Nowhere but in the grandparent visitation section, however, is the term defined.⁶ As recognized by the Court of Appeals in Nelson v Kendrick, supra, other sections of the act use the term broadly to mean any action or situation involving the placement of a child. 187 Mich App 370. We agree with the Nelson Court that, unlike other sections of the act, the specific definition provided in the grandparent visitation statute must be interpreted as a limitation on the term’s broad general usage. Id. at 371.

The legislative history of the grandparent visitation statute supports a narrow reading of the term. Senate Bill 316, introduced in 1991, proposed to amend the grandparent visitation statute to “add to the conditions under which a grandparent may seek visitation rights . . . .” Senate Fiscal Agency Analysis, SB 316-317, May 21, 1991, p 1. The bill, which failed to pass, would have amended the current statute by adding five new subsections to the definition of child custody dispute, one of which would have conferred standing upon grandparents “if the parents [of the grandchild] were never married and were not living in the same household.” Had SB 316 passed, this proposed subsection would have conferred grandparent standing under the facts in this case. If the Legislature intended the present definition of “child custody dispute” to confer standing in situations other than those specified in the provision here in issue, such an amendment would have been unnecessaiy. The proposed amendment of the grandparent visitation statute supports the conclusion that the Legislature intended the current definition of child custody dispute to encompass only those situations specifically enumerated in subsection 7b(2).

In light of the statute’s text and legislative history, we hold that the most reasonable reading of this definitional section is that grandparents who are unable to establish that they fall under one of the situations listed in subsections 2(a) and 2(b)⁷ cannot seek visitation by claiming their grandchild is the subject of a child custody dispute.⁸

Under subsection 2(a), a child custody dispute occurs when the marriage of a child’s parents is annulled or ends in divorce, or the child’s parents are legally separated. A child custody dispute exists under subsection 2(b) when legal custody of the child is given to someone other than a parent, or the child is placed outside the home of a parent.⁹

In sum, the specific situations in which the Legislature permits grandparents to seek visitation are: (1) if the grandparent’s child dies, (2) if the grandchild’s parents’ marriage is annulled, (3) if the grandchild’s parents are divorced, (4) if the grandchild’s parents are legally separated, (5) if legal custody is awarded to a third party, and (6) if the child is placed outside the home of a parent.

We also decline appellee’s invitation to construe subsection 3 of the statute, MCL 722.27b(3); MSA 25.312(7b)(3), as creating a third source of standing for grandparents seeking visitation. Appellee points to the language regarding putative¹⁰ fathers and contends that if the grandparent visitation statute did not apply to paternity cases, then subsection 3 would not mention putative fathers. We disagree. Subsection 3 is procedural. It applies only to grandparents who have established standing under subsections 1 and 2 either because their child is deceased or a child custody dispute involving their grandchild is pending. As indicated below, grandparents of both legitimate and illegitimate children may be entitled to visitation under this statute, thus explaining the reference to putative fathers. The sentence appellee specifies places a further limitation on grandparents of illegitimate children — it requires a putative father to acknowledge paternity or otherwise recognize his child before the paternal grandparents can seek visitation.¹¹ The sentence is one of limitation; it does not create another situation in which visitation may be sought.

Our reading of the grandparent visitation statute is consistent with the legislative approach to third-party custody issues, which we have found limit a nonparent’s right to seek custody. Ruppel v Lesner, 421 Mich 559, 565-566; 364 NW2d 665 (1984); Bowie v Arder, 441 Mich 23, 48-49; 490 NW2d 568 (1992); In re Clausen, 442 Mich 648, 683-684; 502 NW2d 649 (1993). As stated by Ruppel, “nothing in the Child Custody Act, nor in any other authority of which we are aware, authorizes a nonparent to create a child custody ‘dispute’ by simply filing a complaint in circuit court alleging that giving custody to the third party is in the ‘best interests of the child.’ ” Ruppel, supra at 566. Likewise, we decline to create a right to seek grandchild visitation where the statute does not do so.¹² Appellee has failed to establish that he has standing to seek an order of visitation under the statute.

THE EQUAL PROTECTION CLAIM

Appellee next argues that the grandparent visitation statute deprives appellee of equal protection under the law. The Court of Appeals found that the statute created classifications on the basis of illegitimacy, a quasi-suspect class, and thus was subject to heightened scrutiny. The Court concluded that the Legislature’s classification, “seemingly based upon the fortuity of a marriage contract,” was not related to an important governmental interest. 208 Mich App 416.

Equal protection of the law is guaranteed by the federal and state constitutions. The Michigan and federal Equal Protection Clauses offer similar protection. Doe v Dep’t of Social Services, 439 Mich 650, 670-671; 487 NW2d 166 (1992). Unless the discrimination impinges on the exercise of a fundamental right or involves a suspect class, the inquiry under the Equal Protection Clause is whether the classification is rationally related to a legitimate governmental purpose. Id. at 662. When determining the constitutionality of a statute, a court must not be “ ‘guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy . . . Gomez v United States, 490 US 858, 864; 109 S Ct 2237; 104 L Ed 2d 923 (1989).

Grandparent visitation is not encompassed within the definition of a “fundamental right” explicated by the United States Supreme Court.¹³ The right of visitation is one created by statute. OAG, 1981-1982, No 5,903, p 193 (May 15, 1981).¹⁴ See also Ruppel, supra at 565, n 6 (“The Child Custody Act does not create substantive rights of entitlement to custody of a child. . . . The single exception to this principle is in the limited rights of visitation for grandparents created by 1982 PA 340, MCL 722.27b; MSA 25.312[7b].”).

Moreover, the statute does not involve historically disparaged classifications. Appellee contends that the statute creates two classes: grandparents who have legitimate grandchildren and grandparents whose grandchildren are illegitimate. Because the classification is based on legitimacy, appellee asserts that intermediate scrutiny must be used. Clark v Jeter, 486 US 456, 461; 108 S Ct 1910; 100 L Ed 2d 465 (1988); Dones v Thomas, 210 Mich App 674, 677; 534 NW2d 221 (1995).

A review of the statute as a whole, however, indicates that the Legislature did not create classifications using legitimacy as a factor. Nowhere in the statute is a distinction made between children bom in wedlock and children bom out of wedlock. Subsection 1 of the grandparent visitation statute provides:

Except as provided in this subsection, a grandparent of the child may seek an order for visitation 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 a deceased person may commence an action for visitation. Adoption of the child by a stepparent . . . does not terminate the right of a parent of the deceased person to commence an action for visitation. [MCL 722.27b(l); MSA 25.312(7b)(l).]

This subsection presents two situations in which a grandparent may seek visitation of a grandchild: when a child custody dispute with respect to that grandchild is pending, or when the grandparent’s child (the parent of the grandchild) is deceased. Stated otherwise, on its face, the section does not contemplate a grandparent visitation order if there is no custody dispute and the grandparents’ child is still alive, whether or not the grandchild is bom legitimate.

In the case before us, both of Dustin’s parents are alive. Thus, the focus is on whether a child custody dispute involving Dustin is pending. Subsection 2 defines “child custody dispute” for purposes of grandparent visitation:

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. [MCL 722.27b(2); MSA 25.312(7b)(2).]

This definitional section does not posit a judicially enforceable right that distinguishes between children who are bom in wedlock and those born out of wedlock. As drafted, the definition of “child custody dispute” under subsections 2(a) and 2(b) could be met whether the grandchild is legitimate or illegitimate. In a hypothetical situation,¹⁵ where the child’s mother and father marry, the child is bom in wedlock, and the parents divorce, the existence of a “child custody dispute” under subsection 2(a) authorizes the grandparents to petition for visitation. Subsection 2(a) could still apply to permit grandparent visitation if the hypothesis is altered to assume a child bom out of wedlock, whose parents marry, and later divorce. The statute as drafted would not preclude an order of visitation. Because the marriage of the child’s parents was dissolved by a court, the grandparents could petition for visitation of their illegitimate grandchild.¹⁶ Thus, subsection 2(a) does not classify on the basis of legitimacy — it permits grandparent visitation when the grandchild is either legitimate or illegitimate as long as its terms are met.

A facial examination of the language of subsection 2(b) similarly does not support the contention that the legislation classifies by illegitimacy.¹⁷ Where the parental rights of a legitimate child’s parents are terminated and the child is placed with a third party, subsection 2(b), as drafted, authorizes visitation at the request of the grandparents of the legitimate child. When the hypothesis is altered to assume an illegitimate child of a mother whose parental rights are terminated and the child is placed outside the home, subsection 2(b) authorizes visitation because the illegitimate child resides with neither parent.¹⁸

It is true that, in the instant case, had Dustin’s parents married, then divorced, instead of simply living together unmarried, the result would be different. If a divorce were involved, a “child custody dispute” would exist under subsection 2(a) and appellee could seek visitation. However, this distinction does not arise from a classification based on legitimacy. Had Dustin’s parents married after Dustin was bom, and then divorced, a “child custody dispute” would exist under subsection 2(a) even though Dustin was bom out of wedlock.¹⁹

Appellee has failed to show that the legislation has a substantial disparate effect on a disadvantaged class. Grandparents of a legitimate child are denied standing where neither subsections 2(a) nor 2(b) are satisfied,²⁰ while grandparents of an illegitimate child can claim a right to visitation if subsections 2(a) or 2(b) are satisfied. The incidental effect on illegiti-mates as a class “is not sufficient” to warrant heightened scrutiny analysis. Califano v Boles, 443 US 282, 296; 99 S Ct 2767; 61 L Ed 2d 541 (1979).²¹

The classifications created under the grandparent visitation statute are grandparents whose child is deceased or involved in a custody dispute (who may seek visitation), and grandparents whose child is alive or not involved in a custody dispute (who may not seek visitation).²² Because there is no fundamental right or suspect classification involved, a rational basis test is used. Under this test, the grandparent visitation statute will be upheld as long as the classifications therein are rationally related to a legitimate governmental purpose. Doe, supra at 662.

There is a rational basis for creating these classifications and thus limiting the situations in which a grandparent may seek visitation.²³ The Legislature might have determined that unlimited resort to judicially enforced grandparent visitation might infringe on a parent’s fundamental right to raise a child without interference from the government,²⁴ that unlimited jurisdiction over grandparent visitation might invite legal disputes over issues that are more appropriately resolved outside the legal forum, or that because visitation disputes by definition involve interfamily conflict, expansive jurisdiction would not serve the minor’s best interests.²⁵ In relying on the married status of a child’s parents in subsection 2(a) to determine whether a grandparent has standing to seek visitation, the Legislature may have reasonably concluded that parents who decide to marry, whether before or after their child is bom, have an established relationship, and that the relationship between the parents of the child’s father and mother should be protected, despite the parents’ divorce, separation, or annulment. In contrast, parents who conceive a child, but do not marry, may have no established relationship at all.²⁶ These legislative goals are not insubstantial, and the means chosen are rationally related to their promotion.²⁷

The Legislature’s classifications are rationally related to a legitimate government interest. Accordingly, we hold that the grandparent visitation statute does not deprive appellee of equal protection of the law.

We reverse the decision of the Court of Appeals, affirm the grant of summary disposition, and remand this case to the trial court for entry of judgment.

Brickley, C.J., and Riley, Mallett, and Weaver, JJ., concurred with Boyle, J.

1 We will refer to this section as the “grandparent visitation statute.”

2 Because of our disposition of these two issues, we need not reach the issue whether the Court of Appeals was bound to follow Nelson v Kendrick, 187 Mich App 367; 466 NW2d 402 (1991), under Administrative Order No. 1994-4, 445 Mich xci.

3 Because § 7b is a specific section involving grandparent visitation, we reject the dissent’s assertion that the general provisions regarding visitation found in § 7b of the Paternity Act, 1994 PA 388, MCL 722.717b; MSA 25.497(2), provide a means of seeking grandchild visitation. When two legislative enactments seemingly conflict, the specific provision prevails over the more general provision. Malcolm v East Detroit, 437 Mich 132, 139; 468 NW2d 479 (1991); Imlay Twp Primary School Dist No 5 v State Bd of Ed, 359 Mich 478, 485; 102 NW2d 720 (1960).

4 House Legislative Analysis, SB 439 and 440, November 18, 1982. To the contrary, the dissent contends the “underlying principle is to allow grandparents to petition for visitation when circumstances make it unlikely they will obtain an appropriate opportunity to visit the grandchild.” Post at 201. Legislative history lends no support to this conclusion.

5 The Court of Appeals has held that a child custody dispute is still “pending” after a divorce judgment has been entered because a circuit court retains jurisdiction in such cases for purposes of enforcement or modification of the judgment until the child reaches the age of majority. Brown v Brown, 192 Mich App 44, 45; 480 NW2d 292 (1991); Jewett v Jewett, 172 Mich App 391, 394; 431 NW2d 523 (1988); Olepa v Olepa, 151 Mich App 690, 696; 391 NW2d 446 (1986).

6 The definition specifies that it applies only to the grandparent visitation section, not to other sections of the act.

7 If the grandparent’s child, who is the parent of the grandchild, is deceased, the grandparent would have standing to seek visitation under subsection one. MCL 722.27b(l); MSA 25.312(7b)(l). The instant case does not involve such facts, however.

8 The dissent believes that standing should be liberally construed in order to allow a court to reach the issue whether it is in the child’s best interest to have contact with his grandparents. Post at 197-200. We decline to disregard the intent of the Legislature by engaging in an inquiry regarding whether an order of filiation is the functional equivalent of a divorce proceeding, thereby treating the unmarried parents’ relationship as if it were a union that has been dissolved. This approach suggests that any grandparent “squeezed out,” id. at 201, by the failure of the father or mother to grant visitation could claim that a functional divorce has occurred, separating him from the child, and assert that visitation is in the child’s best interests. The dissent’s interpretation would turn the availability of a petition for grandparent visitation on the factual question whether the parents had a “traditional family setting,” id., which has broken down and resulted in a separation. The fact that there are many situations in which the parents of an illegitimate child have never lived together as a family, despite an order of filiation, is one illustration of the obvious: an order of filiation is not the functional equivalent of a divorce.

9 Excluding any child who is placed for adoption with other than a stepparent or whose adoption by other than a stepparent has been legally finalized. MCL 722.27b(2)(b); MSA 25.312(7b)(2)(b).

10 Subsection 3 states in part: “A grandchild visitation order shall not be entered for the parents of a putative father unless the father has acknowledged paternity in writing, been adjudicated to be the father by a court of competent jurisdiction, or has contributed regularly to the support of the child or children.” MCL 722.27b(3); MSA 25.312(7b)(3).

11 This sentence, although it discriminates on the basis of legitimacy, passes constitutional muster. See n 16.

12 We disagree with the dissent that “grandparents [petitioning for grandchild visitation] serve as legal surrogates for the grandchild’s interests.” Post at 214. Such an assertion underscores the dissent’s thinly disguised position that grandparent visitation should always be awarded to grandparents because it is always in the best interest of the grandchild. That we may agree with this sentiment and sympathize with grandparents who are denied visitation by the parents of their grandchildren, see comment, The coming of age of grandparent visitation rights, 43 Am ULE 563, 567, n 20 (1994); Victor, History of grandparent visitation in Michigan, 71 Mich B J 270 (March, 1992), is not the issue. The issue here is standing, and the language chosen by the Legislature mandates the result we reach today.

13 In Moore v City of East Cleveland, 431 US 494; 97 S Ct 1932; 52 L Ed 2d 531 (1977), the United States Supreme Court indicated that the Fourteenth Amendment Due Process Clause accords some protection to the extended family. In Moore, a grandmother challenged a zoning ordinance defining “family” in a manner that made it illegal for her son and her two grandsons, who were first cousins rather than brothers, to live with her. The Supreme Court invalidated the ordinance on the ground that the Due Process Clause prohibits the state from dictating family organization, at least where the traditional extended family is involved. Id. at 504. The right to define “family,” however, is not involved in this case.

14 Other states have held that the common law does not provide for grandparent visitation. See, e.g., King v King, 828 SW2d 630, 632 (Ky, 1992), cert den 506 US 941; 113 S Ct 378; 121 L Ed 2d 289 (1992); In re Adoption of RDS, 787 P2d 968, 969 (Wyo, 1990); White v Jacobs, 198 Cal App 3d 122, 124-125; 243 Cal Rptr 597 (1988); In re Guardianship of Green, 525 NE2d 634, 636 (Ind App, 1988); In re Whitaker, 36 Ohio St 3d 213, 215; 522 NE2d 563 (1988); Ward v Ward, 537 A2d 1063, 1069 (Del, 1987); Jeffries v Jeffries, 253 SE2d 689, 691 (W Va, 1979).

15 The following examples are theoretical only, for purposes of a facial examination of the statute under the federal and state Equal Protection Clauses. We are not examining the statute as applied except in the limited situation presented by the parties. Our analysis is not to be understood to say that in all instances or under all circumstances will this statute comport with the dictates of the federal and state Equal Protection Clauses. However, we will not engage in such analysis until the appropriate facts present themselves. Fortson v Dorsey, 379 US 433, 438-439; 85 S Ct 498; 13 L Ed 2d 401 (1965).

16 The paternal grandparents, however, would be awarded visitation only if their son (the father of the child) 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. MCL 722.27b(3); MSA 25.312(7b)(3). These requirements are not further circumscribed, Mills v Habluetzel, 456 US 91; 102 S Ct 1549; 71 L Ed 2d 770 (1982), and are clearly related to the state’s interest in assuring that there is some relationship between the father and the child and in encouraging putative fathers to acknowledge paternity.

17 Even the dissent recognizes that the grandparent visitation statute does not discriminate on the basis of legitimacy:

While this line is not quite the same as the line drawn under earlier definitions of illegitimacy . . ., both parental groups are the same for equal protection analysis .... [Post at 210.]

18 Again, the paternal grandparents would not be entitled to visitation unless their son acknowledged paternity, was adjudicated to be the father, or contributed regularly to the support of the child. MCL 722.27b(3); MSA 25.312(7b)(3).

19 The dissent reaches the opposite conclusion, finding that the grandparent visitation act, as we interpret it, unconstitutionally classifies on the basis of legitimacy. Post at 211-212. The dissent erroneously claims no grandparent visitation hearing was held “because [Dustin’s] parents never married, over which he had no control.” Id. at 213. In fact, no hearing was held because appellee satisfied none of the six ways of establishing standing. See supra at 181. The dissent improperly focuses solely on § 2(a), which concededly uses the parents’ marital status as a means of separating those grandparents who may seek visitation and those who may not. However, as established above, supra at 186-187, the classification set forth in § 2(a) adversely affects grandparents who seek visitation both of legitimate and illegitimate grandchildren. Simply because Dustin happens to be illegitimate and appellee’s situation does not fulfill the statute’s standing requirements does not mean the statute classifies on the basis of legitimacy. Read as a whole, the classifications within the statute are constitutional.

Nor does our reading of the statute disproportionately affect illegitimate children. Under this analysis, the party challenging the law must prove discriminatory motive or intent. Arlington Heights v Metropolitan Housing Development Corp, 429 US 252, 264-265; 97 S Ct 555; 50 L Ed 2d 450 (1977). Discriminatory purpose “implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v Feeney, 442 US 256, 279; 99 S Ct 2282; 60 L Ed 2d 870 (1979). Appellee has set forth no evidence in support of this requirement.

20 For example, if the parents of the child are married and have custody of their child, yet do not permit the grandparents to see the child, the grandparents have no recourse under the grandparent visitation statute. Likewise, if the parents of the child have not married, and the maternal grandparents seek visitation, and their living child has custody, the grandparents have no recourse under the statute.

21 Califano v Boles holds that “mother’s insurance benefits” payable only to divorced wives and widows of wage earners, not to unwed mothers, is not a classification on the basis of legitimacy because any effect on illegitimate children is incidental and, to a large degree, speculative. Id. at 296.

22 The dissent argues that the statute classifies on the basis of the marital status of the child’s parents. Citing Trimble v Gordon, 430 US 762; 97 S Ct 1459; 52 L Ed 2d 31 (1977), post at 211-212, it concludes that such a classification is equivalent to classifying on the basis of legitimacy, and therefore is entitled to heightened scrutiny. The dissent’s reliance on Trimble illustrates that it misconstrues the focus of the statute. Subsection 2(a) of the statute does not classify on the basis of legitimacy; therefore, Trimble is inapposite. Rather, subsection 2(a) creates classes on the basis of the marital status of the parents with respect to the grandparents, not with respect to the grandchild.

23 In Lockhart v Lockhart, 603 NE2d 864 (Ind App, 1992), the Indiana Court of Appeals likewise engaged in rational basis review of a grandparent visitation statute that was challenged on equal protection grounds. The dissent cites Lockhart for the rationale that court uses to uphold the classes created in the Indiana statute, and adopts that rationale to support its interpretation of the Michigan statute. Post at 202. The Indiana statute draws a line between the parents of the custodial parent and the parents of the noncustodial parent. Similarly, in Michigan, subsection 2(b) prohibits a petition for grandparent visitation unless the child resides with neither parent. The language the dissent quotes from Lockhart does not resolve whether subsection 2(b) discriminates against illegitimates; however, because grandparents of both legitimate and illegitimate children are treated similarly under subsection 2(b), neither group of grandparents may petition for visitation unless the grandchild resides with neither parent.

24 The United States Supreme Court has long recognized that parents have a constitutionally protected interest, with certain constraints, in raising their children without state interference. Lehr v Robertson, 463 US 248, 256-262; 103 S Ct 2985; 77 L Ed 2d 614 (1983); Bellotti v Baird, 443 US 622, 638; 99 S Ct 3035; 61 L Ed 2d 797 (1979); Parham v JR, 442 US 584, 602; 99 S Ct 2493; 61 L Ed 2d 101 (1979); Wisconsin v Yoder, 406 US 205, 232-233; 92 S Ct 1526; 32 L Ed 2d 15 (1972); Pierce v Society of Sisters, 268 US 510, 534-535; 45 S Ct 571; 69 L Ed 1070 (1925); Meyer v Nebraska, 262 US 390, 399; 43 S Ct 625; 67 L Ed 1042 (1923). See also Brooks v Parkerson, 265 Ga 189; 454 SE2d 769 (1995). In Brooks, the Georgia Supreme Court determined that in order to protect parents’ constitutional right to raise their children free from undue state interference, its grandparent visitation statute must be struck down as unconstitutional. The statute provided no limitation on grandparent standing and permitted a court to grant visitation “upon proof of special circumstances which make such visitation rights necessary to the best interests of the child.” Ga Code Ann 19-7-3(c). The court concluded that “state interference with parental rights to custody and control of children is permissible only where the health or welfare of a child is threatened.” Id. at 193.

25 Comment, The coming of age of grandparent visitation rights, n 12 supra, 601; note, The constitutional constraints on grandparents’ visitation statutes, 86 Colum LR 118, 124 (1986).

26 Contrary to the dissent’s suggestion, the paternity action was sought by plaintiff Gina Frame and not by the father, defendant Jay Nehls. Jay Nehls did admit paternity in this case. However, it does not follow that fathers who admit paternity when faced with a paternity complaint and DNA testing universally accept responsibility for rearing their children. According to the dissent’s interpretation of the statute, the párente of a recalcitrant father whose paternity is only established by a court proceeding would have a right to seek visitation upon the establishment of their child’s paternity even though they have no relationship whatsoever with their grandchild. Such a prospect might discourage women from seeking to establish the paternity of absentee fathers. The Legislature may reasonably have wished to preclude this possibility.

27 The dissent contends that there is no explanation for the classifications set forth in the grandparent visitation statute. The lines are drawn where they are because the Legislature put them there. As long as these lines survive rational basis review, which they do, this Court must defer to the legislative policy choices. In Mathews v Lucas, 427 US 495, 515; 96 S Ct 2755; 49 L Ed 2d 651 (1976), two illegitimate children challenged certain provisions of the Social Security Act under the Equal Protection Clause. Under the act, illegitimate children may only collect death benefits upon a showing that they were dependent on the deceased wage earner. The statute, however, had in place certain presumptions that relieved some illegitimate children of the burden of setting forth proof of dependency. In upholding the statute, the Court stated:

[T]he constitutional question is not whether such a presumption is required, but whether it is permitted. Nor, in ratifying these statutory classifications, is our role to hypothesize independently on the desirability or feasibility of any possible alternative basis for presumption. These matters of practical judgment and empirical calculation are for Congress.

Likewise, the judgment of the Legislature reflected in the statute is that, where the parents are living and have not married, grandparent visitation should be determined outside the judicial forum.