Tuesday, May 18, 2010

Grandparents rights

Flint Divorce Attorney Terry Bankert discusses several Issues:

Tuscola grandparents get visitation;

Flint Divorce Lawyer looks at whether the trial court properly awarded plaintiffs grandparent visitation time after the death of their son (the children's father); MCL 722.27b(1)(c);

Grand Parents Rights Lawyer reviews Whether the trial court had the authority to order grandparenting time; MCL 722.27b(3)(b); Bowman v. Coleman;

Stipulation as to visitation; Koron v. Melendy; Agreement read in open court under MCR 2.507(G); Massachusetts Indem. & Life Ins. Co. v. Thomas; Wagner v. Myers;

Whether defendant's ( mothers )due process rights were violated; Lewis v. Legrow;

Whether the plaintiffs-grandparents proved the mother s decision to lessen grandparenting time created a substantial risk of harm to the children under MCL 722.27(4)(b)


Court: Michigan Court of Appeals (Unpublished 05/11/2010)
Case Name: McQuillan v. Sanback
Tuscola Circuit Court
LC no 08-024762-DZ
e-Journal Number: 45763
Judge(s): Per Curiam - Talbot, Fitzgerald, and M.J. Kelly


Concluding the plaintiffs-grandparents were statutorily entitled to seek a grandparenting time order after the death of their son Joshua, the children's father, and the defendant-mother stipulated with them to the grandparenting time plan, which ostensibly worked for all parties, the court held the trial court properly entered an order memorializing the agreement and denied the mother's motion for a JNOV or new trial.

The Grandparents son died as the result of injuries sustained in a car accident.

DID YOU KNOW?“A child’s grandparent may seek a grandparenting time order . . . [if] the child’s parent who is a child of the grandparents is deceased.” MCL 722.27b(1)(c). Here, plaintiffs are the grandparents of the two minor children. Because their son is deceased, plaintiffs are entitled to seek a grandparenting time order in accordance with MCL 722.27b(1)(c).

Grand Parent Plaintiffs filed a complaint against the defendant, their daughter-in-law, seeking to establish grandparenting time with Joshua's two children.

The grand parents and the mother (parties) entered into a stipulated settlement to address grandparenting time visitation at a hearing.

… an agreement that is read in open court is binding on the parties under MCR
2.507(G).1 “Judgments entered pursuant to the agreement of the parties are of the nature of a contract, rather than a judicial order entered against one party.” Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; 520 NW2d 708 (1994). Absent a showing of fraud or duress, it is appropriate for a court to enforce the terms of the parties’ agreement. Id. “The litigant who so asserts to a stipulation freely entered into in open court carries a heavy burden of persuasion. Every presumption of judicial care, or professional competence, and of decretal stability is against the overthrow, in the appellate court, of such stipulation and of orders and MCR 2.507(G), formerly MCR 2.507(H) states: An agreement or consent between the parties or their attorneys respecting the proceedings in an action, subsequently denied by either party, is not binding
unless it was made in open court, or unless evidence of the agreement is in
writing, subscribed by the party against whom the agreement is offered or by that
party’s attorney. [MCR 2.507(G).]

Mom’s Attorney Defense counsel stated in open court, "It is a fair and accurate full statement of the agreement of the parties of the settlement."

After the Grandparents (plaintiffs) filed a motion for entry of an order and a hearing, an order memorializing the agreement was entered.

Later, mom changed her minds (defendant) filed a motion for JNOV or a new trial alleging she was under duress at the time she reached the settlement, she did not understand what she was agreeing to, and it was not in the children's best interest to provide the level of grandparenting time specified in the agreement.
… defendant agreed to visitation time and entered a stipulated agreement on the record. Because defendant did not deny grandparenting time, plaintiffs’ burden to overcome the presumption provided by MCL 722.27b(4)(b) was never triggered. Essentially, defendant waived this presumption by agreeing to the grandparenting visitation time stipulation. Again, defendant may not benefit from a claim of error resulting from her own conduct. See Lewis, 258 Mich App at 210.

The Tuscola Circuit Court (trial court) denied the motion, holding the defendant was bound by the agreement placed on the record and it could not change the grandparenting time order without a showing of a change of circumstances.

The Tuscola Circuit court held defendant's challenge to the trial court's authority to order grandparenting time was without merit, as were her claims her due process rights were violated, and the grandparents were seeking to control the amount of visitation they have with the children in violation of MCL 722.27b(3)(b). The Michigan Court of Appeals agreed with the Tuscola Circuit Court (Affirmed).

Posted here by
Terry Bankert

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