Nelson v. Kendrick

• Decision Date: 05 February 1991
• Docket Number: Docket No. 119002
• Citation: 187 Mich.App. 367,466 N.W.2d 402
• Parties: Stephen NELSON, Plaintiff, and Carl Nelson and Marcella Nelson, Plaintiffs-Appellants, v. Theresa KENDRICK a/k/a Theresa Barnett, Defendant-Appellee. 187 Mich.App. 367, 466 N.W.2d 402
• Court: Court of Appeal of Michigan — District of US

Page 402

466 N.W.2d 402

Stephen NELSON, Plaintiff, and Carl Nelson and Marcella Nelson, Plaintiffs-Appellants, v. Theresa KENDRICK a/k/a Theresa Barnett, Defendant-Appellee.

Docket No. 119002.

187 Mich.App. 367, 466 N.W.2d 402

Court of Appeals of Michigan.

Submitted Nov. 20, 1990, at Lansing.

Decided Feb. 5, 1991, at 9:05 a.m.

Released for Publication March 25, 1991.

[187 MICHAPP 368] Youatt, Means & Associates by William G. Youatt, Haslett, for Carl and Marcella Nelson.

Robert Detweiler, Brighton, for defendant-appellee.

Before MacKENZIE, P.J., and McDONALD and MURPHY, JJ.

PER CURIAM.

Plaintiffs Carl and Marcella Nelson appeal from a June 29, 1989, circuit court order finding the court had no jurisdiction to entertain their request for enforcement of an earlier order entered by stipulation of the parties providing them, as paternal grandparents, visitation with a minor, Shane Kendrick. We affirm.

This appeal raises the question whether grandparent visitation may be ordered by a circuit court pursuant to M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b) during the pendency of a paternity action. We agree with the circuit court and conclude that it may not.

In 1984, Stephen Nelson and his parents, Carl and Marcella Nelson, filed a complaint in the circuit court against defendant Theresa Kendrick to determine Stephen Nelson's paternity of the minor and to establish child support and grandparent[187 MICHAPP 369] visitation rights. On January 18, 1985, the court entered a stipulated order signed by the parties establishing paternity, visitation, and support and allowing the grandparents visitation rights. In March 1989, Carl and Marcella Nelson sought enforcement of the visitation order. Following a hearing on their motion to show cause, the trial court dismissed the Nelsons' petition, finding the court did not have jurisdiction over the issue of grandparent visitation at the time it entered the original order. Thus, the court concluded, inasmuch as it addressed grandparent visitation rights, the original order was void for lack of jurisdiction. On appeal, the grandparents claim the court erred in concluding it lacked jurisdiction to order grandparent visitation. We disagree.

Grandparent visitation rights are expressly created by statute as part of the Child Custody Act, M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b). The statute states in pertinent part:

(1) Except as provided in this subsection, a grandparent of the child may seek an order for visitation in the manner set forth in this section only if a child custody dispute with respect to that child is pending before the court. If a natural parent of an unmarried child is deceased, a parent of the deceased person may commence an action for visitation.

Thus a grandparent may seek an order for visitation from a circuit court only where either a child custody dispute is pending before the court or the grandparents' child is a natural parent of the minor and is deceased. The second alternative clearly being inapplicable to the instant facts, we must determine whether Stephen Nelson's complaint for determination of paternity constitutes a "child custody dispute" within the meaning of the [187 MICHAPP 370] section of the act authorizing grandparent visitation rights. This determination need not be made in a vacuum, however, as the statute provides a clear definition of the term "child...