The plaintiffs in this case, Robert and Judith Porter, are the parents of Russell Porter, whose parental rights to his two children were terminated by court order. Russell Porter and the children’s mother, Christina Hill, later divorced. Russell paid child support until his death.
Following their son’s death, the Porters sought a court order to allow them to have grandparenting time with the children. Hill opposed them arguing that the Porters lacked standing to seek the order since their son’s parental rights had been terminated.
The trial judge ruled in Hill’s favor, but added, “I hope the Court of Appeals reverses me on this issue.” The judge stated:
I’m going to make it real simple. This matter is going to go up on appeal no matter who wins or losses [sic]. I am going to keep it simple for appeal, because it’s something that the appellate courts should decide.
It’s the Court’s--and I am not making any determination on these grandparents. They appear to be fine people. But I am going to have to rule that under the Child Custody Act your rights come through those of your child. And I’m ruling that the Child Custody Act does not allow, when somebody’s parental rights are terminated, for the grandparents to seek visitation. … And, therefore, right to grand parenting visitation, in my view under the Child Custody Act, I don’t see any legal support for it.
The Porters appealed, but in a 2-1 published opinion, the Court of Appeals upheld the trial court, reasoning that, because their son’s parental rights has been terminated, the Porters lacked standing – a legal requirement that a party have a special right or interest in a case – to sue for grandparenting time under the Child Custody Act.
The Child Custody Act, MCL 722.21 et seq., “is the exclusive means for pursuing” court orders for parenting time, the majority observed. MCL 722.27b(1) provides that “[a] child’s grandparent may seek a grandparenting time order under 1 or more of the following circumstances: . . . (c) The child’s parent who is a child of the grandparents is deceased.” “Parent” is defined as “the natural or adoptive parent of a child,” MCL 722.22(h), and “grandparent” is defined as “a natural or adoptive parent of a child’s natural or adoptive parent,” MCL 722.22(e).
“At the time of his death, Russell was not a legal parent of the children. He had no right to have any input regarding matters in their lives; in fact, to do so would have violated a court order,” the majority stated. “Accordingly, for purposes of the present case, Russell was not a legal parent, plaintiffs are not legal grandparents, and they have no basis on which to seek an order of grandparenting time.”
The Porters argued that, because their son paid child support until his death, he continued to act as a parent; because their son met his parental responsibilities, they are entitled to visitation, an express parental right. But the majority rejected that argument: “[U]nder Michigan’s statutory scheme, parental rights are distinct from parental obligations.” A court order terminating parental rights does not eliminate the child support obligation, and the parent whose rights were terminated cannot assert a right to see or contact the children based on paying child support, the majority said. Similarly, the fact that Hill claimed Social Security benefits for the children through Russell Porter did not “revive” his parental rights or confer standing on the Porters, the majority concluded.
The majority also rejected the Porters’ contention that the Child Custody Act permits grandparents to seek a visitation order even when their child’s parental rights were terminated. MCL 722.27b(5) provides:
If 2 fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court shall dismiss a complaint or motion seeking an order for grandparenting time filed under subsection (3). This subsection does not apply if 1 of the fit parents is a stepparent who adopted a child under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandparent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or whose parental rights have been terminated.
“[T]he circumstances outlined (e.g., a stepparent adoption) are not present here, and thus MCL 722.27b(5) does not advance plaintiffs’ case,” the majority declared. “As noted by defendant, it is likely that the Legislature included the termination-of-rights language in this statute in order to accommodate a situation in which a parent has voluntarily released his or her parental rights merely to allow for a stepparent adoption. We strongly urge the Legislature to amend this statute to clarify that the second sentence of MCL 722.27b(5) does not apply in cases where parental rights have been involuntarily terminated on the basis of neglect or abuse or in cases where parental rights have been relinquished following the initiation of child-protective proceedings.”
The dissenting judge said that the majority erred by equating “natural parent” – the term used in the Child Custody Act provision for grandparenting time – with “legal parent.”
“In affirming the trial court (notwithstanding the trial court’s stated preference to be reversed), however, the majority does not really answer the question before us, i.e., whether Russell was a ‘natural parent’ of the minor children. Instead, the majority notes that at the time of his death, Russell was no longer a ‘legal parent’ of the children. But ‘natural parent’ and ‘legal parent’ are obviously two very different terms, carrying distinct meanings.”
The Child Custody Act does not define “natural parent,” but the “legal and ordinary definitions of the word ‘natural’ do imply a physical link,” such as “related by blood” and “of or relating to birth,” the dissent noted. Moreover, by defining “parent” as being either “natural or adoptive,” the act does not equate “natural” with “legal,” since adoptive parents are legal parents, the dissent reasoned.
“I also do not agree with the majority’s assertion that ‘[p]laintiffs, as Russell’s parents, derived their rights as grandparents through him’ and, therefore, that Russell’s loss of his parental rights automatically also deprived plaintiffs of their grandparent rights…. the Child Custody Act is premised on the recognition that, at least in some circumstances, a grandparent’s right to grandparenting time arises independently of parental rights and notwithstanding parental desires. Otherwise, there would be no reason to statutorily provide grandparents with a right to seek grandparenting time.”
Moreover, MCL 722.27b(5) “recognizes the Legislature’s intent that a ‘grandparent’ seeking grandparenting time may be a ‘natural or adoptive parent’ of a ‘parent . . . whose parental rights have been terminated.’ In other words, even though a person’s parental rights have been terminated, he or she may still be a ‘parent’ for purposes of enabling a grandparent to seek grandparenting time,” the dissent added.
The Porters appealed to the Michigan Supreme Court. In an order dated October 25, 2013, the Court directed the case to be scheduled for oral argument on whether to grant the Porters’ application or take other action. The Court directed the parties to address “(1) whether the parents of a man whose parental rights to his minor children were terminated prior to his death have standing to seek grandparenting time with the children under the Child Custody Act, MCL 722.21 et seq., and (2) whether the term ‘natural parent’ in MCL 722.22(d) and (g) is the equivalent of ‘legal parent’ or ‘biological parent.’”