State High Court Strikes Down Grandparent Visitation Law


A decision by the Michigan Supreme Court is the most recent to address the issue of grandparents’ rights to visit their grandchildren. In the Michigan case, the state law giving grandparents rights was found to be unconstitutional. Not all states have reached the same result—Arizona courts, for example, continue to maintain that the law in Arizona can be used to force visitation in at least some circumstances.

The Michigan case arose after Joseph DeRose was convicted of molesting his step-daughter. He was sentenced to prison for ten to twenty years, and his wife Theresa filed for divorce. In the divorce proceedings, not surprisingly, she was given custody of the couple’s daughter, now six years old.

Joseph DeRose’s mother Catherine DeRose then filed a request with the court that she be allowed to visit her granddaughter. She argued that contact with grandparents is good for young children, and that state law permitted her to seek visitation in such cases. After a court investigation, the judge ordered that Catherine DeRose be given two hours of supervised visitation every other Sunday, possibly increasing to four hours if all went well.

In making his decision, the judge made clear that he thought the imposition on Theresa DeRose was small and that contact between granddaughter and grandmother would be good. He mentioned that he thought Theresa DeRose might now be trying to “overcorrect” for not having realized that something was going on with her husband’s sexual conduct with her older daughter. “It doesn’t strike me that there is any reason here that a child should be deprived of a grandmother,” ruled the trial judge.

The Michigan Supreme Court disagreed. After observing that nothing in the Michigan law on grandparent visitation that “requires deference of any sort be paid … to the decisions fit parents make for their children,” the Court found the Michigan statute to be unconstitutional. For the moment, at least, there is no law in Michigan permitting grandparents to seek court-ordered visitation with their grandchildren. DeRose v. DeRose, July 31, 2003.

The DeRose case, of course, relies heavily on the divided U.S. Supreme Court in Troxel v. Granville in 2000. In that case, a majority of Supreme Court Justices struck down a Washington state statute which purported to give grandparents the right to go to court to seek visitation. In Arizona and some other states, courts have ruled that similar statutes are not defective, and grandparents’ visitation rights can be secured. Not so, now, in Michigan.

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