In Wernette and Finch v Wernette, Unpub (1/4/2011, 293309 the Court of Appeals affirmed the Circuit Court’s denial of grandparenting time after the suicide of the grandfather’s son, the father of the children. The Court of Appeals suggested that a successful grandparenting time action or motion must include expert testimony, or at least the testimony of knowledgeable professionals such as school personnel or "others trained in children’s behavior or mental health." Without such testimony, the grandparent will have difficulty proving that denial of grandparenting time creates a substantial risk of harm to the child's mental, physical, or emotional health as required by the statute.
Plaintiff grandfather argued that common sense should have led the court to see that it would be damaging to the children to cut off his relationship with the children, already emotionally impacted by their father’s death. However, under MCL 722.27b(4)(b) an appeal to common sense does not overcome the presumption that the denial of grandparenting time does not create such a risk and even when the presumption is overcome, visitation is only ordered in those situations where the court decides it is in the best interests of the children. MCL 722.27b(6).
The denial of court-ordered grandparenting time is not equivalent to the complete denial of the right to see the children. It is true that the circumstances seem to indicate that at this time defendant is unlikely to allow visitation. However, circumstances can change. It is not that the court is preventing visitation—the court is simply not ordering that it occur.