Zawilanski v. Marshall
317 Mich. App. 43
| Mich. Ct. App. | 2016Background
- Mother (Zawilanski) and father were never married; mother sought and obtained custody and parenting time after recovering from a serious 2010 auto accident that left her with traumatic brain injuries. Father later died in 2014.
- Paternal grandmother (Bredow) had been primary caregiver for extended periods early in the child’s life and sought grandparenting time after the father’s death; parties had previously agreed to some grandparenting time and asked the Friend of the Court (FOC) to recommend a schedule.
- FOC recommended expanded grandparenting time (including overnights) conditioned on grandmother’s counseling; grandmother petitioned for grandparenting time consistent with FOC recommendations and for more time (alternate weekends plus additional overnights).
- Mother proposed a more limited schedule (twice-weekly visits and a monthly overnight) and objected to grandmother receiving parenting-time equivalent to a noncustodial parent, arguing the court must apply the fit-parent presumption under MCL 722.27b(4).
- An FOC referee recommended grandparenting time equivalent to that of a noncustodial parent (alternate weekends, summer weeks, holidays); the trial court adopted the recommendation and denied mother’s objections and reconsideration motion.
- The Court of Appeals vacated the order and remanded, holding the referee and trial court committed legal error by failing to apply and require rebuttal of the fit‑parent presumption before awarding grandparenting time equivalent to a noncustodial parent’s time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by awarding grandparenting time equal to a noncustodial parent without applying the fit‑parent presumption | Mother: The court failed to apply MCL 722.27b(4)(b) and grandmother did not rebut the presumption that mother’s decision to limit time would not harm the child | Grandmother: The FOC report and history of caregiving show grandmother rebutted the presumption and justify substantial grandparenting time | Court: Reversed — referee and trial court made clear legal error by not applying the fit‑parent presumption and requiring grandmother to rebut it; remand for further proceedings |
Key Cases Cited
- Keenan v Dawson, 275 Mich App 671 (court of appeals standard for reviewing grandparenting-time orders)
- Fletcher v Fletcher, 447 Mich 871 (appellate review: factual findings affirmed unless clearly preponderated against)
- Berger v Berger, 277 Mich App 700 (abuse of discretion standard in custody matters)
- McIntosh v McIntosh, 282 Mich App 471 (legal error occurs when court misapplies law)
- In re Sanders, 495 Mich 394 (parental liberty interest and fit‑parent presumption)
- Troxel v Granville, 530 US 57 (recognition of presumption that fit parents act in child’s best interests)