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State High Court Strikes Down Grandparent Visitation Law

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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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.