COA Upholds Limitation on Grandparent Visitation

In Brinkley v Brinkley, the Court of Appeals rejected appellants' argument that MCL 722.27b(5) unconstitutionally violates grandparents; due process and equal protection rights. The statutory provision grants deference to the decisions of the biological parents by providing that a grandparents' complaint or motion seeking visitation must be dismissed where two fit parents sign an affidavit opposing visitation.

In determining whether the provision passes constitutional muster, the Court declined to apply a strict scrutiny standard and clarified that grandparents do not have a fundamental right to a relationship with their grandchildren. The Court instead found that the rational basis standard was applicable because the case turned on issues concerning the rights of parents versus the rights of grandparents as opposed to issues of government interference with familial relationships.

Although the Court recognized that grandparents can play an important role in a child's life, it highlighted that the statutory scheme gives deference to parents' preferences, except in narrowly prescribed circumstances. To allow grandparents an opportunity to challenge an affidavit signed as directed by MCL 722.27b(5) would "thwart" the whole statutory scheme. Following that reasoning, the Court further concluded that the statute was rationally related to the legitimate purpose of preserving fit parents' fundamental right in managing the care, custody, and control of their children.

The Court also denied the grandparents' equal protection claim and found a rational basis for the legislature distinguishing between the class of grandparents who may seek court intervention, and those who may not. It illustrated the rational basis by noting that parents have the right to make decisions regarding their children's welfare, including contacts with grandparents, unless special circumstances justify state intervention. Those "special circumstances" recognized by the statute are all indicative of situations where the child's natural parents would not be able to make decisions in child's best interest and, thus, court action would be required.

This decision closes the door on grandparent visitation where both parents oppose grandparent visitation. In the case of parents v. grandparents, parents prevail once again.

Court of Appeals Halts Downward Departure

In People v McNeil, an unpublished per curiam opinion of the Michigan Court of Appeals, decided October 4, 2007, the Court of Appeals found that the trial court had abused its discretion by granting the defendant a downward departure from the sentencing guidelines for reasons that were not substantially compelling. The defendant pleaded guilty to CSC I and was sentenced to 10 to 22 months, although the recommended statutory range for the offense is 27 to 45 months. The trial court indicated that the departure was warranted because the defendant was attending school, had completed sex offender counseling, had registered as a sex offender, had tested negative for drugs and alcohol, and had reported to the probation department as required. Basically, the defendant did what he was supposed to do.

The Court of Appeals reasoned that a defendant should not be rewarded for doing what is expected of him and that granting a downward departure under these circumstances constitutes an abuse of discretion absent any other substantial and compelling reason for the downward departure. The sentence was vacated and remanded to the trial court for re-sentencing. The lesson: if a defendant has not stepped up and done more than what is naturally expected of him, his sentence is not likely to be stepped down.