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.
Labels: appal by right, grandparenting time appeal, MCR 7.202(6)(a)(i); MCR 7.202(6)(a)(iii), order affecting custody, parent's fundamental rights
