Grandparenting time; Zawilanski v. Marshall; Situation where both parents object to a grandparent’s motion for grandpareting time; MCL 722.27b(5); Brinkley v. Brinkley; Defining “fit” as used in MCL 722.27b; The Child Custody Act (CCA) (MCL 722.21 et seq.); Troxel v. Granville; DeRose v. DeRose; Presumption that the Legislature acts with knowledge of current judicial interpretations; Gordon Sel-Way, Inc. v. Spence Bros., Inc.; Re-enactment of a statute after its provisions were construed by the court; GMAC LLC v. Department of Treasury; Whether the trial court’s finding that the parents were unfit was against the great weight of the evidence; Keenan v. Dawson; Fletcher v. Fletcher

In an issue of first impression for a Michigan court, the court incorporated the definition of “fit” set forth in Troxel (“a parent who ‘adequately cares for his or her children’”) into MCL 722.27b. It then held that the trial court’s finding that the plaintiff-father and defendant-mother were unfit parents was against the great weight of the evidence. Thus, it reversed the order granting the intervener-grandfather’s motion for grandparenting time, and remanded for entry of an order denying his motion. The CCA does not define “fit” or “unfit” in the context of MCL 722.27b, and no Michigan court had defined the term in this context. However, the U.S. Supreme Court defined “fit” in Troxel, a decision that led the Michigan Supreme Court to declare a previous version of Michigan’s grandparenting statute unconstitutional in DeRose. Troxel and DeRose led to the amendment of MCL 722.27b to its present form. Thus, the court adopted the Troxel definition of fit. Applying the definition, it concluded that the record did not support a determination that either parent “failed to adequately care for their children,” and the trial court’s “conclusion to the contrary clearly preponderated in the opposite direction.” While the trial court’s “analysis largely focused on the parents’ failure to resolve various parenting issues during the contentious proceedings” before and after the divorce, their “relationship has significantly improved since they resolved the remaining custody and parenting-time issues while this motion was pending.” Although the children struggled during the custody proceedings with frequently changing households, “and the parents failed to effectively communicate and resolve” disagreements, the record showed that, “generally speaking, those concerns are largely concerns of the past.” Further, the primary allegations leading to several Child Protective Services’ investigations were not substantiated. While the court did not necessarily agree with the parents’ alleged decision to largely exclude the grandfather from the children’s lives, it could not deprive them of their constitutionally protected right to raise their children as they see fit – as two fit parents, the decision was for them to make, not the court or the trial court.