Varran v. Granneman
312 Mich. App. 591
| Mich. Ct. App. | 2015Background
- Child A born 2002; parents (Mother Varran — deceased — and Father Granneman) never married. Father obtained custodial arrangements early; child spent years living with paternal grandparents (petitioners).
- In 2013 Father curtailed grandparents’ overnight visits and supervised contact; grandparents moved for grandparenting time under MCL 722.27b and obtained temporary every-other-weekend visitation and then a final order granting every-other-Saturday-to-Sunday visitation.
- Father appealed; Court of Appeals initially dismissed for lack of jurisdiction. Michigan Supreme Court remanded asking whether a grandparenting-time order "affects custody" under MCR 7.202(6)(a)(iii) to allow an appeal of right under MCR 7.203(A).
- On remand the panel held the grandparenting-time order did affect a parent’s custody interests (interfering with parental decisionmaking/legal custody) and therefore was appealable as of right; took jurisdiction and addressed merits.
- Court rejected Father’s facial constitutional challenge to MCL 722.27b’s preponderance-of-the-evidence standard, upheld trial court subject-matter jurisdiction, and affirmed findings that grandparents proved substantial risk of harm if visitation denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a grandparenting-time order is a "postjudgment order affecting custody" under MCR 7.202(6)(a)(iii) (appealability) | Varran/Grandparents: order does not alter legal/physical custody but influences child’s care; parents’ decisionmaking remains implicated. | Granneman: grandparenting time does not change legal/physical custody; appeals of right limited to orders that change or effectively change custody; grandparenting-time appeals require leave. | Court: a grandparenting-time order that overrides a fit parent’s decision affects parental legal-custody interests and is a final order under MCR 7.202(6)(a)(iii); appeal of right proper. |
| Constitutionality of MCL 722.27b’s preponderance standard (due process / Troxel) | Father: rebuttal standard must be clear-and-convincing to protect parental fundamental rights. | Grandparents/State: statute presumes fit-parent decision valid and requires proof by preponderance that denial creates substantial risk of harm; statute gives deference required by Troxel. | Court: statute passes facial challenge; preponderance standard sufficient for grandparenting-time proceedings because rights at stake and consequences differ from involuntary termination of parental rights. |
| Subject-matter jurisdiction to hear grandparents’ motion filed as a motion (not separate complaint) | Father: trial court lacked continuing jurisdiction over child and thus lacked subject-matter jurisdiction to hear motion. | Grandparents: trial courts have jurisdiction over custody disputes and may consider grandparenting time in pending custody matters; statute permits motion where court has continuing jurisdiction. | Court: trial court had subject-matter jurisdiction to hear grandparenting-time motion in existing custody case. |
| Evidentiary rulings — use of statements to psychologist after expert disqualified / hearsay | Father: trial court improperly relied on child A’s statements to psychologist Fishman after disqualifying Fishman as expert; statements were hearsay and unreliable. | Grandparents: Father withdrew hearsay objection at hearing; trial court admitted Fishman’s report and A’s statements; court may consider the statements. | Court: Father waived hearsay objection; trial court did not abuse discretion in considering A’s statements; factual finding of substantial risk supported. |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (2000) (parents have fundamental due‑process right to make decisions concerning childrearing; courts must give deference to fit parents)
- Santosky v. Kramer, 455 U.S. 745 (1982) (standard of proof analysis in proceedings implicating parental rights)
- Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990) (role of standards of proof under Due Process)
- Hunter v. Hunter, 484 Mich. 247 (2009) (clear‑and‑convincing standard protects parental presumption in custody disputes between parent and third party)
- DeRose v. DeRose, 469 Mich. 320 (2003) (Michigan supreme court striking prior grandparent‑visitation statute under Troxel principles)
- Thurston v. Escamilla, 469 Mich. 1009 (2004) (postjudgment change of domicile can constitute an order affecting custody and be appealable as of right)
- Wardell v. Hincka, 297 Mich. App. 127 (2012) (denial of postjudgment motion to change custody may nonetheless "affect" custody for appealability)
- Rains v. Rains, 301 Mich. App. 313 (2013) (denial of change‑of‑domicile motion that influences where child will live is appealable as of right)
- Keenan v. Dawson, 275 Mich. App. 671 (2007) (standard of review and statutory context for grandparenting‑time claims)