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### STATE OF MICHIGAN

COURT OF APPEALS

JARRET T. GEERING,

Plaintiff-Appellant, FOR PUBLICATION June 13, 2017

9:05 a.m.

v No. 335794

Kalamazoo Circuit Court ELIZABETH MAY KING, formerly known as

ELIZABETH MAY GEERING and ELIZABETH MAY ROBINSON, LC No. 2011-008001-DM

Defendant-Appellant,

and

MARTIN ROBINSON,

Intervener-Appellee.

Before: O’B RIEN , P.J., and H OEKSTRA and B OONSTRA , JJ.

O’B RIEN

, P.J.

Jarret T. Geering and Elizabeth May King (formerly known as El izabeth May Geering and Elizabeth May Robinson) appeal as of right the circuit cour t’s order granting Martin Robinson’s motion for grandparenting time. We reverse and rema nd this matter for the entry of an order denying the moti on for grandparenting time.

Jarret T. Geering and Elizabeth May King began dating in appro ximately 2002, married on September 26, 2009, and have four children together. In 201 1, however, the parties separated, Geering remained in Kalamazoo, King moved with the c hildren to Bay City, and, on December 15, 2011, Geering filed a complaint for divorce. In h is complaint, Geering sought, in relevant part, joint legal and jo int 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 Febr uary 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 o rder, this time awarding Geering primary parenting time and King supervised parenting time in li ght of allegations against King regarding her failure to adequate ly attend to one of the childr en’s fractured ankle and bacterial-2- infection. It appears that Geering also reported his concerns to Child Protective Services (CPS), but the resulting neglect case was ultimately dismissed by stip ulation.

On May 28, 2013, the trial court entered a “Final Decision as to Issues of Custody and Parenting Time.” According to t hat decision, the parties were awarded joint legal and joint physical custody. With respect to parenting time during the sc hool 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 vi sit them on any two other

weekends in Kalamazoo for one ove rnight during th e month as lon g as there is one week’s notice to the father . . . .” With respect to parenting time during t he summer and on holidays, the decision provided that “[t]he parents shall share alternating w eeks in the summer” and relatively equal parenting time for holidays. Additionally, the order als o 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 di vorce was finalized on June 23, 2013, and the judgment of divorce provided for joint legal cust ody as well as that physical custody and parenting time would be addressed in “a separate or der[.]” Nevertheless, the parties contentious custody disputes did not come to an end upon the en try of the judgment of divorce.

Instead, they grew more complicated, and it is the complicatio ns that arose after the judgment of divorce was entered that resulted in the instant ap peal. Specifically, the issues before this Court on appeal focus on claims made by Martin Robi nson, King’s father and the children’s grandfather, and his wife, Shaney Robinson, King’s s tepmother and the children’s stepgrandmother, that they were being excluded from the childre n’s lives. These claims resulted in Robinson and his wife filing a successful motion to interven e on November 25, 2013. Then, on the following day, Robinson and his wife filed a motion for grandparenting time, claiming that Geering had “abruptly termi nated” their relationships withthe 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, S kype 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 hi s 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 anot her dispute to the alreadycontentious 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, o n 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 sp end 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 F ebruary 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 e motionally.” As he and his wife had requested before, Robinson again requested grandparenting t ime “[e]very Monday from the end of the school day until the end of their Religious Educatio n Class,” “[t]he first full weekend of every month,” “[f]our weeks during the summer, to include Ju ly 4,” and “contact . . . via telephone, Skype and mail, especially on Holidays and Birthdays ” as well as “such other and-3- 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 cust ody-related issues to that point during the proceedings, filed a joint affidavit opposing Robinson’s mo tion. 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 Moti on 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 n ext 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 c hildren’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 communicat ion, the inconsistency in coparenting, [and] not fostering th e relationship with the other parent,” the parents “created a substantial risk of harm to all four of [their] children’s ment al, physical, emotional health.” Consequently, the circuit court entered an order allowing Robin son regular grandparenting time that could include his wife at his discretion. Specifically, the trial court ordered that the children spend one weekend each month dur ing the school year and one wee k during the summer with Robinson and/or his wife. A written order reflecting the circu it court’s decision was entered on November 14, 2016. Geering and King appeal as of right that or der, arguing, in part, that the circuit court’s order granting Robinson’s motion for grandparen ting 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 situation s where a parent challenges a circuit court’s de cision to grant a grandparent’s motion for grandparenting time in

Zawilanski v Marshall , 317 Mich App 43, 48-50; ___ NW2d ___ (2016), stating, in rele vant part,
as follows:

“Orders concerning [grand]parenting time must be affirmed on a ppeal 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 ma de a clear legal error on a major issue.” Keenan v Dawson , 275 Mich App 671, 679; 739 NW2d 681 (2007) (quotation marks and citation omitted). The Court s hould affirm a trial court’s findings of fact unless the evidence “clearly pre ponderate[s] in the opposite direction.” Fletcher v Fletcher , 447 Mich 871, 879; 526 NW2d 889 (1994) (quotation marks and citation omitted; alteration in ori ginal). 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 pervers ity of will, a defiance of judgment, or the exercise of passion or bias.” Berger v Berger , 277 Mich App 700, 705; 747 NW2d 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 inco rrectly chooses, interprets, or applies the law.”

McIntosh v McIntosh , 282 Mich App 471, 475; 768 NW2d 325 (2009).

Parents have a constitutionally protected right to make decisi ons about the care, custody, and management of their children. In re Sanders , 495 Mich 394, 409; 852 NW2d 524 (2014). This right “is not absolute, as the state has a legitimate interest in protecting the moral, emotional, mental, and physical-4- welfare of the minor . . . .” Id . at 409-410, quoting Stanley v Illinois , 405 US 645, 652; 92 S Ct 1208; 31 L Ed 2d 551 (1971) (quotation marks and c itation omitted). “The United States Constitution, however, recognizes ‘a presump tion that fit parents act in the best interest of their children’ and that ‘t here will normally be no reason for the State to inject i tself into the private realm of the family to further question the ability of [fit parents] to make the best decision s concerning the rearing of [their] children.’ ” In re Sanders , 495 Mich at 410, quoting Troxel v

Granville , 530 US 57, 68-69; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (opini on by O’Connor, J.) (alterations in Sanders ).

MCL 722.27b provides grandparents in certain situations the me ans to seek an order for grandparenting time. To protect parents’ fun damental liberty to make decisions about the care, custody, and management of their children, MCL 722.27(4)(b) incorporates a rebutta ble 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 he alth.” To rebut this presumpt ion, 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 c hild’s mental, physical, or emotional health.” Id . If the grandparent does not rebut the presumption, the court must dismiss the grandparenting-time act ion. Id

. However, if the grandparent meet s the standard f or rebutting th e 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 inter ests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the ch ild by the grandparent by general or s pecific terms and conditions. [MCL 722.27b(6).]

In sum, MCL 722.27b(4) and (6) generally control in situations where a parent objects to a grandparent’s motion for grandpa renting time. This case, how ever, does not involve a situation

where a parent objects to a grandparent’s motion for grandparenting tim e. Rather, it involves a

situation where both parents object to a grandparent’s motion for grandparenting tim e. In such a situation, MCL 722.27b(5) controls. That statutory provision p rovides as follows:

If 2 fit parents sign an affidavit stating that they both oppos e an order for grandparenting time, the court shall dismiss a complaint or mot ion seeking an order for grandparenting time f iled under subsec tion (3). This subsection does not apply if 1 of the fit parents is a stepparent who adopted a chi ld under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandpa rent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or who se parental rights

have been terminated.

Consequently, “if two fit parent s (with the exception of certai n circumstances that are not present in this case) both oppose visitation, their joint opposition ef fectively creates an irrebuttable-5- presumption that denial of grandparenting time will not create a substantial risk of harm to the child, and the grandparents’ p etition must be dismissed.” Brinkley v Brinkley , 277 Mich App 23, 29; 742 NW2d 629 (2007).

In this case, Geering and King each signed affidavits stating, in relevant part, that, as fit parents, they opposed an order regarding grandparenting time. Therefore, it was and remains their position that the circuit court was required to dismiss R obinson’s motion for grandparenting time pursuant to MCL 722.27b(5). Robinson, on the other hand, contends that the circuit court was not required to dismiss his motion because one or both pare nts were unfit. Consequently, the issue before this Court focuses on the interpretation and a pplication of the term “fit” as used in MCL 722.27b. The Child Custody Act, MCL § 722.21 et seq ., including the definitions provision of that act, MCL 722.22, does not define the terms “f it” or “unfit” in this context. It also appears that neither this Court nor our Supreme Court have defined the term in this context. However, the United States Supreme Court, in Troxel v Granville , 530 US 57, 68; 120 S Ct 2054; 147 L Ed 2d 49 (2000), define d a “fit” parent as a parent who “adequately cares for his or her children[.]” It did so in the context of determining wheth er statutes allowing for third-party parenting time must afford deference to the children’s parents. It held that they must. Id . at 68- 69. That decision led this Court to declare a previous version of our state’s grandparenting time statute unconstitutional, DeRose v DeRose , 469 Mich 320, 333-334; 666 NW2d 636 (2003), and

it was the Troxel and DeRose decisions that ultimately led the Legislature to amend MCL 722.27b to its current form, Brinkley , 277 Mich App at 28-29. It is well established that the Legislature is presumed to actwith knowledge of current judici al interpretations, Gordon SelWay, Inc v Spence Bros, Inc , 438 Mich 488, 505-506; 475 NW2d 704 (1991), and, “[w]hen statutory provisions are construed by the court and the Legisla ture reenacts the statute, it is assumed that the Legislature acquiesced to the judicial interpr etation,” GMAC LLC v Dep’t of Treasury , 286 Mich App 365, 373; 781 NW2d 310 (2009). For these reason s, we choose to incorporate the definition of the term “fit” as set forth in Troxel —as a parent who “adequately

cares for his or her children”—to MCL 722.27b.

Consequently, the issue before this Court is whether the circ uit court’s finding that Geering and King were unfit pare nts was against the great weigh t of the evidence. Zawilanski

, 317 Mich App at 48. We conclude that it was. While we acknowl edge that, like most, if not all, parents, Geering and King are not perfect, it is our view that the record before us simply does not support a conclusion that either p arent failed to adequately ca re for his or her children. The circuit court’s analysis largelyfocused on the parents’ failur e to resolve various parenting issues during the contentious proceedings that took place both before and after the parents’ divorce. Specifically, the circuit court pointed to the parents’ ”incons istency [in] discipline, the inconsistency in communication, th e inconsistency in co-parenti ng, [and] not fostering the relationship with the other paren t[.]” However, as the circuitcourt expressly acknowledged, the parents’ relationship has signi ficantly improved since they res olved the remaining custody and parenting-time issues while this motion was pending. Indeed, a s the trial court recognized, the record reflects that there was “improvement between mom and dad ,” that “they [were] both starting to mature and get established,” and “that the childre n are doing well academically and emotionally and . . . have witnessed their parents being respec tful and pleasant for each other.” It is this that led to the entry of a stipulated order in eithe r late May or early June of 2016 determining the parties’ cust ody and parenting time arrangement s. Although it is true that, during the custody proceedings, the children struggled with cha nging households frequently, the-6- children had difficulty in adjusting to the different expectati ons between Geering’s and King’s households, and the parents failed to effectively communicate a nd resolve disagreements in those respects, the record also refl ects that, generally speaking, th ose concerns are largely concerns of the past. Relatedly, it cannot be overlooked CPS conducted sev eral investigations during the custody proceedings, most of which Geering believes were a resu lt of Robinson’s wife’s reports, and none of the primary allegations were substantiated. In sum , we do not believe that the record before us supports a conclusion that Geering or King failed to adequately care for their children,

and the circuit court’s conclusi on to the contrary clearly prep onderated in the opposite direction.

Id

.

Our conclusion does not necessarily mean that we agree with Ge ering’s and King’s purported decision to largely exclude Robinson and his wife fro m the children’s lives. Indeed, it is very apparent from the record that the trial court did not a gree with that decision. However, parents have a constitutionally p rotected right to raise their children as they see fit, Zawilanski

, 317 Mich App at 48-50, and we cannot deprive them of this const itutionally protected right simply because we, as bystanders who are not intimately involve d in the parents’ or the children’s lives, do not agree with a decision made by the pare nts. It may well be that the parents’ decision to alter the re lationship that the children, Robinson, and his wife shared negatively impacted the children, but that is not the inquiry, and it is simply not the judiciary’s role to make such a decision for two otherwise fit parents. In deed, it appears that King may be willing to allow Robinson to spend time with the children, and it is certainly possible that, eventually, both parents might even be willing to allow Robinso n and his wife to spend time with the children as well. However, our review of the record reflec ts that such a decision should be made by Geering and King, two fit parents, not this Court or th e circuit court. Accordingly, because the trial court’s finding that Geering and King were un fit parents was against the great weight of the evidence, we reverse the circuit court’s order gr anting Robinson’s motion for grandparenting time and remand this matter for the. In light o f this conclusion, we need not

address the remainder of Geeri ng and King’s arguments raised onappeal.

Reversed and remanded. We do not retain jurisdiction. Appell ants, as the prevailing party, may tax costs pursuant to MCR 7.219.

/s/ Colleen A. O’Brien

/s/ Joel P. Hoekstra

/s/ Mark T. Boonstra