STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5903

May 15, 1981

ADOPTION:

Termination of parental rights

CHILDREN AND MINORS:

Visitation by grandparents of adopted children

The grandparents of deceased parent's children may petition a court of competent jurisdiction for visitation rights, even though the children have been adopted by a stepparent where the rights of the deceased parent were not terminated voluntarily or by order of the court in the lifetime of the parent.

Honorable Charles H. Varnum

State Representative

The Capitol

Lansing, Michigan

You have inquired about grandparents' visitation rights. Specifically, you question whether 1980 PA 161, which amended the Child Custody Act of 1970, 1970 PA 91; MCLA 722.21 et seq; MSA 25.312(1) et seq; amending 1970 PA 91, supra, Sec. 7 and repealing 1970 PA 91, supra, Sec. 7a, addresses the following circumstances:

1. Where there are children of a marriage where either parent (being a son or daughter of the children's grandparents) is deceased;

2. Where the surviving spouse has remarried with the new wife or husband adopting the children; and

3. Where the parents of the deceased spouse (i.e., the grandparents) seek visitation.

A common law, there were no rights of grandparents to visitation. In the Child Custody Act of 1970, 1970 PA 91, supra, amendatory 1971 PA 80 added section 7a so as to provide for 'grandparent visitation.' As added by 1971 PA 80, Sec. 7a of the Act, supra, provided:

The meaning of this section was addressed by the Michigan Court of Appeals in the case of Bikos v Nobliski, 88 Mich App 157; 276 NW2d 541 (1979). Bikos addressed a similar factual situation with the exception that your question contemplates an impending adoption by the stepparent, whereas in Bikos, adoption of the children by the stepparent had already been accomplished. The Court of Appeals held:

The holding of the Court in Bikos, supra, was premised on its reading of the grandparent-visitation statute, being section 7a of the Child Custody Act of 1970, supra, in conjunction with the effect-of-adoption statute, 1939 PA 388, ch 10, Sec. 60, as added by 1974 PA 296; MCLA 710.60; MSA 27.3178(555.60), which provided:

As noted by the Court in the case of In re Adolphson Estate, 403 Mich 490, 592; 271 NW2d 511 (1978), prior to the enactment of amendatory 1974 PA 296, supra, the former statute, 1939 PA 388, ch 10, Sec. 9; MCLA 710.9; MSA 27.3178(549),

Similar to inheritance statutes, adoption statutes in effect at the time of adoption are controlling. Eg, In re Miner Estate, 359 Mich 579; 103 NW2d 498 (1960).

Subsequent to the decision in Bikos, supra, the Legislature amended the grandparent-visitation statute and the effect-of-adoption statute upon which the Court grounded its decision. First, the effect-of-adoption statute, 1939 PA 388, ch 10, Sec. 60, supra, was amended by 1980 PA 116. While subsection (1) of section 60 was not amended, section 60(2) was amended to provide:

The underscored new language added by amendatory 1980 PA 116, supra, replaced language which formerly referred to the adopted person's 'natural parents.' Significantly, the change made by 1980 PA 116, supra, now speaks of 'a parent whose rights have been terminated' and the lineal and collateral kindred of a parent whose rights have been terminated. In employing the word 'terminated' in the context of terminations of parental rights, section 60(2), supra, refers to voluntary or court-ordered termination of parental rights over a child. See 1939 PA 388, ch 10, supra, Sec. 29(6), as last amended by 1976 PA 382 (voluntary release) and Sec. 51(1)-(2), as last amended by 1980 PA 509 (court-ordered termination).

While in the general sense the death of a parent terminates that parent's rights (although clearly not for inheritance purposes) the usage of the word 'terminated' in Sec. 60(2), supra, has reference to voluntary or court-ordered termination of parental rights over a child when the provisions of 1939 PA 388, ch 10, supra, are considered as a whole. Van Antwerp v State, 334 Mich 593; 55 NW2d 108 (1952). Therefore, under Sec. 60(2), as amended by 1980 PA 116, a child is an heir at law of his or her parents, and the parents lineal or collateral kindred, until such parental rights have been voluntarily or judicially terminated.

The second amendment made by the Legislature is to 1980 PA 161 which amended the grandparent-visitation statute, being the Child Custody Act of 1970, 1970 PA 91, supra, in two respects. First, 1980 PA 161 added references to visitation by maternal or paternal grandparents in 1970 PA 191, supra, Sec. 7(b), and added new subsection (g) to section 7, to provide that a court, based on the best interests of the child, may

Secondly, amendatory 1980 PA 161, supra, Sec. 2, repealed 1970 PA 91, Sec. 7a, supra. ⁽¹⁾

By virtue of the fact that 1980 PA 161, supra, amended section 7(b) and added subsection (g) to section 7 of 1970 PA 191, supra, the Legislature contemplated that a court, based on the best interests of the child, may provide for, or grant upon petition, visitation rights by the grandparents of the child's mother or father.

The Legislature is presumed to have knowledge of existing laws upon the same subject, and the statutory construction given those laws by the courts. Michigan Gas Storage Co v Gregory, 341 Mich 34; 67 NW2d 219 (19550; People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979); Ray v Transamerica Insurance Co, 46 Mich App 647; 208 NW2d 610 (1973); Alexander v Michigan Liquor Control Comm, 35 Mich App 686; 192 NW2d 505 (1971).

Amendments to the grandparent-visitation statute (by 1980 PA 161 ⁽²⁾), and the effect-of-adoption statute (by 1980 PA 116) indicate that the Legislature intended to change the statutes upon which the Court in Bikos, supra, grounded its decision to the effect that 'once the stepparent adopts the child, the grandparent-visitation statute ceases to apply.' 88 Mich App 157, 163, supra. Thus, in view of the interaction of the grandparent-visitation statute (as amended by 1980 PA 161) and the effect-of-adoption statute (as amended by 1980 PA 116), as did the Court in Bikos, supra, it is apparent that a court may, for the best interests of a child, grant visitation rights to the child's maternal or paternal grandparents. 1970 PA 91, Sec. 7(b) and Sec. 7(g), as amended by 1980 PA 161, supra.

However, consistent with the reasoning of Bikos, supra, such visitation rights of maternal or paternal grandparents are terminated by voluntary or court-ordered termination of the rights of a parent (i.e., the son or daughter of the grandparents), since such termination severs all rights (including the right to be an heir at law) of such parent and the lineal or collateral kindred of that parent, with the exception of a previously vested right, title, or interest. 1939 PA 388, ch 10, Sec. 60(b), as amended by 1980 PA 116, supra. In case of a child whose parent is dead, (parental rights not having been terminated voluntarily or by court order in the lifetime of the parent), such child after entry of the order of adoption remains an heir at law of that parent and of his or her lineal or collateral kindred. ⁽³⁾

With respect to the type of petition for visitation rights which may be filed by maternal or paternal grandparents under 1970 PA 91, Sec. 7(g), as amended by 1980 PA 161, supra, it is noted that section 7 thereof states:

This language provides for either an original action or appropriate pleadings in another action such as custody action pending before a court.

CONCLUSION

It is my opinion, therefore, that where:

the grandparents of the deceased parent's children may seek grandparental visitation rights. Such visitation rights must be granted or denied on the basis of the best interests of the child, and if such visitation rights are denied, the court shall make a record of such denial.

Frank J. Kelley