COA Finally Provides Guidance for Grandparenting Time Appeals
It took a nudge from the Michigan Supreme Court, but the Court of Appeals released a published opinion in Varran v Granneman, issued October 13, 2015 (Docket 321866; 322437), concluding that the father had an appeal by right from the trial court's order awarding grandparenting time, over the father's objection. Under MCR 7.202(6)(a)(iii), a post judgment order affecting custody is appealable by right. The Court of Appeals reasoned that a parent would have an appeal by right as an order "affecting custody" because the award of grandparenting time "overrides a parent's legal decision to deny grandparenting time, a grandparenting time order interferes with the parent's fundamental right to make decisions concerning the care, custody, and control of his or her child." The Court identified the material distinction between the court rule's use of the term "affecting" custody, but not requiring a "change" in custody.
By this decision, the Court of Appeals did not address an appeal by grandparents who are denied grandparenting time. Presumably, consistent with this decision and the court rule, when a grandparent is denied grandparenting time, the question of whether there is an appeal by right or by leave is a bifurcated issue. If the grandparents filed an original action, as the statute permits, and the trial court denies grandparenting time, then presumably the grandparents would have an appeal by right under MCR 7.202(6)(a)(i), because the order would be the "first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties." But if the grandparents filed a motion in an existing case (such as the divorce file), then a denial of grandparenting time would only be appealable by application to the Court of Appeals because that order does not qualify under either MCR 7.202(6)(a)(i) [first order rule] or (iii) [post judgment order affecting custody].
The Court of Appeals' decision also addresses a host of other interesting issues related to grandparenting time orders (constitutionality of statute, subject matter jurisdiction, requirement that parent deny grandparenting time, expert testimony, substantial risk of harm). It is worth a read if you are working on any grandparenting time case.
