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Geering v. King

Court of Appeals of Michigan

June 13, 2017

JARRET T. GEERING, Plaintiff-Appellant,
v.
ELIZABETH MAY KING, formerly known as ELIZABETH MAY GEERING and ELIZABETH MAY ROBINSON, Defendant-Appellant, and MARTIN ROBINSON, Intervener-Appellee.

         Kalamazoo Circuit Court LC No. 2011-008001-DM

          Before: O'Brien, P.J., and Hoekstra and Boonstra, JJ.

          O'Brien, P.J.

         Jarret T. Geering and Elizabeth May King (formerly known as Elizabeth May Geering and Elizabeth May Robinson) appeal as of right the circuit court's order granting Martin Robinson's motion for grandparenting time. We reverse and remand this matter for the entry of an order denying the motion for grandparenting time.

         Jarret T. Geering and Elizabeth May King began dating in approximately 2002, married on September 26, 2009, and have four children together. In 2011, however, the parties separated, Geering remained in Kalamazoo, King moved with the children to Bay City, and, on December 15, 2011, Geering filed a complaint for divorce. In his complaint, Geering sought, in relevant part, joint legal and joint physical custody of their four children. From the filing of the complaint until June 2016, approximately four and a half years later, contentious custody proceedings between the parents ensued. In an order dated February 8, 2012, primary parenting time was awarded to King, but Geering was awarded two overnight visits during the first weekend of each month, five weeks of parenting time during the summer, and relatively equal holiday parenting time. Approximately four months later, on June 25, 2012, the trial court entered a parenting-time order modifying its February 8, 2012 order, this time awarding Geering primary parenting time and King supervised parenting time in light of allegations against King regarding her failure to adequately attend to one of the children's fractured ankle and bacterial infection. It appears that Geering also reported his concerns to Child Protective Services (CPS), but the resulting neglect case was ultimately dismissed by stipulation.

         On May 28, 2013, the trial court entered a "Final Decision as to Issues of Custody and Parenting Time." According to that decision, the parties were awarded joint legal and joint physical custody. With respect to parenting time during the school year, the trial court concluded that King would "be allowed to have the children once a month in Bay City on the first full weekend of every month, and [would] be allowed to visit them on any two other weekends in Kalamazoo for one overnight during the month as long as there is one week's notice to the father . . . ." With respect to parenting time during the summer and on holidays, the decision provided that "[t]he parents shall share alternating weeks in the summer" and relatively equal parenting time for holidays. Additionally, the order also provided that, in the event King "move[d] back to the Kalamazoo area permanently, " "the mother and father shall share parenting time with the minor children on a 50/50 basis." The parties divorce was finalized on June 23, 2013, and the judgment of divorce provided for joint legal custody as well as that physical custody and parenting time would be addressed in "a separate order[.]" Nevertheless, the parties contentious custody disputes did not come to an end upon the entry of the judgment of divorce.

         Instead, they grew more complicated, and it is the complications that arose after the judgment of divorce was entered that resulted in the instant appeal. Specifically, the issues before this Court on appeal focus on claims made by Martin Robinson, King's father and the children's grandfather, and his wife, Shaney Robinson, King's stepmother and the children's stepgrandmother, that they were being excluded from the children's lives. These claims resulted in Robinson and his wife filing a successful motion to intervene on November 25, 2013. Then, on the following day, Robinson and his wife filed a motion for grandparenting time, claiming that Geering had "abruptly terminated" their relationships with the children and requesting grandparenting time "[e]very Monday from the end of the school day until the end of their Religious Education Class, " "[t]he first full weekend of every month, " "[f]our weeks during the summer, to include July 4, " and "contact . . . via telephone, Skype and mail, especially on Holidays and Birthdays" as well as "such other and such further relief as may be equitable and in good conscience." However, an order permitting Robinson and his wife to withdraw that motion was entered approximately four months later, on March 3, 2014, and, according to King, she had asked Robinson to withdraw the motion because it added yet another dispute to the already-contentious custody proceedings.

         Apparently, Robinson and his wife remained unhappy with their level of involvement in the children's lives over the next year or so. Consequently, on February 17, 2015, Robinson, alone this time, filed a second motion for grandparenting time. In his motion, Robinson asserted that Geering and King were only allowing him and his wife to spend time with the children "on a sporadic basis" and only "during their mother's parenting time." Explaining that he had only been able to see all or some of the children 13 times between February 2014 and November 2014, Robinson asserted that the parents' decision to "cut him off cold" would have a "devastatingly negative impact on [the children] mentally and emotionally." As he and his wife had requested before, Robinson again requested grandparenting time "[e]very Monday from the end of the school day until the end of their Religious Education Class, " "[t]he first full weekend of every month, " "[f]our weeks during the summer, to include July 4, " and "contact . . . via telephone, Skype and mail, especially on Holidays and Birthdays" as well as "such other and such further relief as may be equitable and in good conscience." In response to Robinson's motion, Geering and King, who had largely disagreed on all custody-related issues to that point during the proceedings, filed a joint affidavit opposing Robinson's motion. In it, they indicated, in relevant part, "[t]hat both of the affiants are fit parents and both parents of the . . . minor children herewith oppose the Motion for Grandparenting Time as not being within the best interests of the minor children."

         After holding three day-long hearings over the course of the next 21 months, the trial court granted Robinson's motion, concluding, in relevant part, that Geering and King were unfit parents and that grandparenting time with Robinson was in the children's best interests. In finding that Geering and King were unfit parents, the trial court explained that due to their "inconsistency [in] discipline, the inconsistency in communication, the inconsistency in co-parenting, [and] not fostering the relationship with the other parent, " the parents "created a substantial risk of harm to all four of [their] children's mental, physical, emotional health." Consequently, the circuit court entered an order allowing Robinson regular grandparenting time that could include his wife at his discretion. Specifically, the trial court ordered that the children spend one weekend each month during the school year and one week during the summer with Robinson and/or his wife. A written order reflecting the circuit court's decision was entered on November 14, 2016. Geering and King appeal as of right that order, arguing, in part, that the circuit court's order granting Robinson's motion for grandparenting time should be reversed because the circuit court erroneously concluded that they were unfit parents. We agree.

         This Court recently summarized the applicable law in situations where a parent challenges a circuit court's decision to grant a grandparent's motion for grandparenting time in Zawilanski v Marshall, 317 Mich.App. 43, 48-50; __N.W.2d __(2016), stating, in relevant part, as follows:

"Orders concerning [grand]parenting time must be affirmed on appeal unless the trial court's findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue." Keenan v Dawson, 275 Mich.App. 671, 679; 739 N.W.2d 681 (2007) (quotation marks and citation omitted). The Court should affirm a trial court's findings of fact unless the evidence "clearly preponderate[s] in the opposite direction." Fletcher v Fletcher, 447 Mich. 871, 879; 526 N.W.2d 889 (1994) (quotation marks and citation omitted; alteration in original). A trial court abuses its discretion on a custody matter when its "decision is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias." Berger v Berger, 277 Mich.App. 700, 705; 747 N.W.2d 336 (2008). We conclude that this standard should also apply to decisions about parenting and grandparenting time. A court commits clear legal error "when it incorrectly chooses, interprets, or applies the law." McIntosh v McIntosh, 282 Mich.App. 471, 475; 768 N.W.2d 325 (2009).
Parents have a constitutionally protected right to make decisions about the care, custody, and management of their children. In re Sanders, 495 Mich. 394, 409; 852 N.W.2d 524 (2014). This right "is not absolute, as the state has a legitimate interest in protecting the moral, emotional, mental, and physical welfare of the minor . . . ." Id. at 409-410, quoting Stanley v Illinois, 405 U.S. 645, 652; 92 S.Ct. 1208; 31 L.Ed.2d 551 (1971) (quotation marks and citation omitted). "The United States Constitution, however, recognizes 'a presumption that fit parents act in the best interest of their children' and that 'there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of [fit parents] to make the best decisions concerning the rearing of [their] children.' " In re Sanders, 495 Mich. at 410, quoting Troxel v Granville, 530 U.S. 57, 68-69; 120 S.Ct. 2054; 147 L.Ed.2d 49 (2000) (opinion by O'Connor, J.) (alterations in Sanders).
MCL 722.27b provides grandparents in certain situations the means to seek an order for grandparenting time. To protect parents' fundamental liberty to make decisions about the care, custody, and management of their children, MCL 722.27(4)(b) incorporates a rebuttable presumption "that a fit parent's decision to deny grandparenting time does not create a substantial risk of harm to the child's mental, physical, or emotional health." To rebut this presumption, a grandparent "must prove by a preponderance of the evidence that the parent's decision to deny grandparenting time creates a substantial risk of harm to the child's mental, physical, or emotional health." Id. If the grandparent does not rebut the presumption, the court must dismiss the grandparenting-time action. Id. However, if the grandparent meets the standard for rebutting the presumption,
the court shall consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that it is in the best interests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the child by ...

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