I am Cameron Goulding, a family law attorney in the Troy area of Oakland County, Michigan. As a divorce lawyer, it is very important to stay on top of the changes and developments in this area of law. The matter of Roger and Ellen Brainard v Angela Brainard, Michigan Court of Appeals, Docket No. 312336, March 19, 2013 (unpublished opinion) deals with the issue of a change of custody from the grandparents to the parent of minor children.

The Issue

Who has the burden of proof when it comes to a change of custody between the grandparents that have had custody for several years and a parent of the children?

The Answer

It appears that no matter how long the grandparents have had custody of the child or children, the burden of proof will remain on them. In the case I cited above, the mother and father lived in Tennessee and in 2007 the Tennessee Department of Children's Services (CPS) removed the children from the parents because the father had sexually assaulted one of the children and the mother had allegedly failed to protect the child.

Subsequently the mother gave birth to a fourth child that CPS did not remove from her custody. The court terminated the father's parental rights but the mother entered into a consent order granting custody of two of the minor children and a guardianship over the third minor child to the paternal grandparents (the parents of the sexually abusive father). In return, CPS withdrew its petition to terminate her parental rights. The order provided that the mother could seek to regain custody in the future.

The grandparents lived in Jackson, Michigan and the mother moved to Jackson with the fourth child as well. The grandparents basically had custody of all three children until 2011 when the grandparents filed a petition seeking custody over the third child as well. The mother appeared in the family court and objected to the grandparents retaining custody of all three children. The court ordered parenting time for the mother over several months with all three children and slowly increased the amount of allotted time pending an evidentiary hearing regarding the matter.

The court finally started the hearings regarding custody in August 8, 2012. The court found that two or three of the "best interest" factors favored the mother and the other factors favored neither party. The court then applied a presumption that the mother should have custody unless the grandparents proved by clear and convincing evidence that it was not in the children's best interests for the mother to have custody despite the fact that the grandparents had provided a good home to the children for about four years.

The court then made the decision to change custody to the mother; the grandparents appealed. The Michigan Court of Appeals agreed with the trial court both in its factual determination and in its application of the parental presumption indicated above, so that the burden of proof was on the grandparents.

This is interesting because typically where there is a contest between two parents over custody and one parent has had custody for a significant period of time, the court will find that there is an established custodial environment with the custodial parent. Then the burden is on the parent seeking to change custody to prove first that there is good cause or a change of circumstances in order to revisit the custody issue and then if the parent meets that hurdle that parent must prove that a change is in the best interests of the child by clear and convincing evidence.

Summation

However, where it is a parent that is seeking to change custody against a third-party that is not a parent, the analysis and burden of proof is placed on its head due to the constitutional right to parent making it much easier for a parent to regain custody from a third party. The parent does not have to show a change in circumstances or good cause and the third party has the burden of proof to show that the change is not in the children’s best interests by clear and convincing evidence.

This may be a good or bad thing for the children depending on how much emphasis one places on stability for the children. It is certainly hard on the grandparents whom, as in this case, stepped in and provided a home for the three children for four years.

This is why I often suggest to grandparents that face such a situation that the grandparents at least discuss terminating the parent's parental rights and adopting the children. This way the grandparents do not have to worry about the mother or father subsequently coming in and taking the custody away from them but at the same time the grandparents have the ability to facilitate the parent's involvement with the children.