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NYFamilyLawyer, Lawyer
Category: Family Law
Satisfied Customers: 574
Experience:  Owner, attorney in private practice, licensed for 36 years as a trial and appellate attorney
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My sister/daughter died last year and she had a 7 year old

Customer Question

My sister/daughter died last year and she had a 7 year old son at the time. My sister was more like my daughter as your Mom died when she was 16. From the time she was 13 years old I filled the roll of her mother because your was bed ridden. When her son was born I considered him my Grandson. His father will not allow me to see him anymore. Before my sister asked me to make sure her son had a Birthday party every year., That he would not forget her and make sure he got encouragement. She knew that his father would would not do any of those things. Once I tried to fulfill those request, he would no longer allow me to see my nephew/ Grandson. Can I ask the court to give me visitation rights. I had ask to have him for 2 weeks during the summer and one weekend end a month during the school week as 4days sometime during the Christmas break and 2days during the Easter break
Submitted: 4 months ago.
Category: Family Law
Expert:  NYFamilyLawyer replied 4 months ago.

Hello. I’m a licensed attorney with 36 years’ experience. I specialize in family law and appeals, and I have many years’ experience with landlord-tenant issues, employment and contract law. I also have written hundreds of legal articles. I look forward to helping you today.

Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an attorney on this site.

At the end of this session, I will ask you to please rate me as that’s the only way I get credit for helping you today. Thanks! Please note: I want to help you but I may need some additional information from you. Are you okay with rating me? I would really appreciate it!

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To clarify, the father would not allow the visitation for the 2 weeks in summer, etc.? You haven't take this to court yet, correct? Thanks!

Expert:  NYFamilyLawyer replied 4 months ago.

I'm sorry for the situation you are in. I wish the father were more cooperative. Is he unfit as a parent? That's a tough call but I'm wondering if a court will deem him unfit.

You're not asking for custody of the child/grandson, just visitation. This is the problem, and I wish I had better news. Most states are pretty clear about third-party custody and visitation. Michigan is not. In fact, the courts are still figuring out what to do in such cases.

For example, we don't know what a Michigan court will deem as "unfit" as a recent case shows. One example of how a lack of clear direction in third-party custody law made for a divided decision is Hunter v. Hunter (484 Mich. 247, 771 N.W.2d 694 (2009)), which was recently ruled on by the Michigan Supreme Court. The trial court awarded custody to a paternal aunt and uncle over the children’s mother because the court found the mother unfit and thus was not entitled to the constitutional protection afforded in a leading US Supreme Court case, which places the burden of proof on a third party competing against a parent for custody. Instead, the trial court found that “a parent is unfit when his or her conduct is inconsistent with the protected parental interest or the parent has neglected or abandoned the child.” Because the court did not define “inconsistent,” what constitutes “unfitness” remains elusive.

A biological aunt or uncle might obtain custody if the child’s natural parents were abusive or neglected the child, and the aunt or uncle had formed a strong emotional bond with the child; if they can obtain custody, then they should be able to get visitation in such circumstances. However, it's not clear in Michigan if this will be allowed, and many states just allow grandparent custody and visitation.

Expert:  NYFamilyLawyer replied 4 months ago.

EVen in grandparent cases in Michigan, there have been recent cases denying grandparent time with their grandchild. The statute allows grandparents to apply for "grandparenting time" if one of the parents is deceased, but there is a leading case that recently denied grandparenting time when the parent objected.

Grandparenting time is difficult to get in Michigan , so therefore for an aunt to get visitiation will be difficult, but not impossible. Since Michigan doesn't know which way it's going to rule on these cases, the best idea is to discuss this with a local attorney who can bring this case for you in the local Family Division.

Expert:  NYFamilyLawyer replied 4 months ago.

I've checked the recent Michigan case law and it's not settled as to what they allow and what they don't. So I suggest that if you want visitation with your grandson/nephew, that you bring this case in the local Family Division court. You will need to show the court that while you are the aunt, you have been a "de facto" grandparent to this child since his birth. That means that you've been like a mother to your sister and a grandparent to your nephew.

A de facto custodian is a person who has been the primary caregiver for and financial supporter of a child who has resided with that person for at least 6 months if the child is less than 3 years old or at least one year if the child is older than 3 years old. You may not be the de facto custodian now, but perhaps at one time you were? You'll need to tell the court if the child lived with you, what your relationship is with the child, what your relationship was with your sister, what your sister asked you to do, etc.

If you would like me to find family lawyers in your area, I can do that for you as a free service. I do that for my customers here to point them, and you, in the right direction in their home areas. We can't make recommendations but I can give you a list of family lawyers and a complete, short guide as to how to pick one.

To recap, many states are clear on grandparent rights and third-party rights. Michigan is not so clear-cut. Therefore, if you want to test the waters, by all means bring a case in the local family court if you cannot get dad to comply. If it turns out dad is unfit, you may end up applying for custody. Just keep that notion in mind -- just in case.

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Expert:  NYFamilyLawyer replied 3 months ago.

Hi, just checking in to see if you still need help with your question and if my answer was helpful for you. Thanks and thank you for allowing me to help you.


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