Emily R Varran v. Peter J Granneman ( 2015 )


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  •                             STATE OF MICHIGAN
    COURT OF APPEALS
    EMILY R. VARRAN, by next friend, JULIA M.                          FOR PUBLICATION
    VARRAN,                                                            October 13, 2015
    9:10 a.m.
    Plaintiff,
    v                                                                  Nos. 321866; 322437
    Washtenaw Circuit Court
    PETER J. GRANNEMAN,                                                LC No. 03-000271-DC
    Defendant-Appellant,
    and
    DEBORAH GRANNEMAN and JAMES
    GRANNEMAN,
    Interveners-Appellees.
    Before: RONAYNE KRAUSE, P.J., and MURPHY and SERVITTO, JJ.
    SERVITTO, J.
    These matters are before us on remand from our Supreme Court for further consideration
    of our June 20, 2014, order dismissing father’s claim of appeal in Docket No. 321866 for lack of
    jurisdiction and our July 16, 2014, order dismissing father’s claim of appeal in Docket No.
    322437 for the same reason. The Supreme Court directed us to “issue an opinion specifically
    addressing the issue of whether an order regarding grandparenting time may affect custody
    within the meaning of MCR 7.202(6)(a)(iii), or otherwise be appealable by right under MCR
    7.203(A).” Varran ex rel Varran v Granneman, 
    497 Mich. 928
    ; 856 NW2d 555 (2014); Varran
    ex rel Varran v Granneman, 
    497 Mich. 929
    ; 856 NW2d 555 (2014).
    Plaintiff Emily Varran (“mother”), who is deceased, and father Peter Granneman
    (“father”) are the parents of a minor child, “A”, born on November 17, 2002, when the parents
    were both minors. The parents never married. The mother initially had custody of A, but when
    A was 8 months old he went to live with father, who resided with his parents, intervening
    petitioners (“grandparents”). This arrangement continued until 2005 when A was 2 ½ years old.
    At that time, grandparents asked father to leave their home due to hostility and conflicts. A
    continued to reside with grandparents and father initially visited A once a week at grandparents’
    home. Within a few months, father had A with him on Saturday nights at his apartment.
    -1-
    Mother passed away in 2007. In 2007, father also began having A with him on Friday
    and Saturday nights. In the summer of 2012, A began living with father during the week and
    visiting with grandparents every weekend. In the spring of 2013, father reduced A’s visits with
    grandparents to every other weekend. In May 2013, father advised grandparents that they would
    no longer have overnight visits with A and that any contact between them and A would be under
    father’s supervision.
    Grandparents, as intervening petitioners, filed a motion for grandparenting time with A in
    June 2013. In a July 2013 order, the trial court awarded grandparents temporary visitation with
    A every other weekend from Saturday at 10:00 am to Sunday at 6:00 p.m. and set the matter for
    an evidentiary hearing. At the conclusion of the evidentiary hearing, the trial court issued a
    written opinion on April 25, 2014, wherein it determined that A would suffer a substantial risk of
    future harm to his mental and emotional health if grandparenting time were not granted. The
    trial court additionally applied the best interest factors set forth in MCL 722.27b and found that it
    was in A’s best interest to allow grandparenting time. The trial court thereafter, on May 30,
    2014, entered an order providing grandparents with visitation with A every other Saturday from
    10:00 a.m. until Sunday at 6:00 p.m. Father claimed an appeal from the trial court’s April 25,
    2014, opinion granting grandparenting time and its May 30, 2014, order setting a specific
    grandparenting time schedule. As previously indicated, this Court dismissed both appeals and,
    on remand, our Supreme Court directed us to address the issue of “whether an order regarding
    grandparenting time may affect custody within the meaning of MCR 7.202(6)(a)(iii), or
    otherwise be appealable by right under MCR 7.203(A).” The Supreme Court further directed
    that if this Court determines that the lower court order is appealable by right, we shall take
    jurisdiction over father’s claims of appeal and address their merits. Varran ex rel Varran, 
    497 Mich. 928
    ; Varran ex rel Varran, 
    497 Mich. 929
    . We consolidated both appeals.
    I. Application of MCR 7.202(6)(a)(iii)
    The first issue for resolution is, as directed by the Supreme Court, whether an order for
    grandparenting time affects custody within the meaning of MCR 7.202(6)(a)(iii), making it
    appealable as of right under MCR 7.203(A). The issue of whether this Court has jurisdiction to
    hear an appeal is an issue reviewed de novo. Wardell v Hincka, 
    297 Mich. App. 127
    , 130; 822
    NW2d 278 (2012). The interpretation and application of a court rule is a question of law that
    this Court reviews de novo. Haliw v Sterling Heights, 
    471 Mich. 700
    , 704; 691 NW2d 753
    (2005).
    MCR 7.203(A) provides:
    The court has jurisdiction of an appeal of right filed by an aggrieved party from the
    following:
    (1) A final judgment or final order of the circuit court, or court of claims,
    as defined in MCR 7.202(6), except a judgment or order of the circuit court
    (a) on appeal from any other court or tribunal;
    (b) in a criminal case in which the conviction is based on a plea of guilty
    or nolo contendere:
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    An appeal from an order described in MCR 7.202(6)(a)(iii)-(v) is limited
    to the portion of the order with respect to which there is an appeal of right.
    (2) A judgment or order of a court or tribunal from which appeal of right
    to the Court of Appeals has been established by law or court rule.
    MCR 7.202(6)(a) defines a “final judgment” or “final order” in a civil case as the following:
    (i) the first judgment or order that disposes of all the claims and
    adjudicates the rights and liabilities of all the parties, including such an order
    entered after reversal of an earlier final judgment or order,
    (ii) an order designated as final under MCR 2.604(B),
    (iii) in a domestic relations action, a postjudgment order affecting the
    custody of a minor,
    (iv) a postjudgment order awarding or denying attorney fees and costs
    under MCR 2.403, 2.405, 2.625 or other law or court rule.
    (v) an order denying governmental immunity to a governmental party,
    including a governmental agency, official, or employee under MCR 2.116(C)(7)
    or an order denying a motion for summary disposition under MCR 2.116(C)(10)
    based on a claim of governmental immunity[.]
    The rules of statutory interpretation apply to the interpretation of court rules. Reed v
    Breton, 
    279 Mich. App. 239
    , 242; 756 NW2d 89 (2008). The goal of court rule interpretation is to
    give effect to the intent of the drafter, the Michigan Supreme Court. Fleet Business Credit, LLC
    v Krapohl Ford Lincoln Mercury Co, 
    274 Mich. App. 584
    , 591; 735 NW2d 644 (2007). The
    Court must give language that is clear and unambiguous its plain meaning and enforce it as
    written. 
    Id. Each word,
    unless defined, is to be given its plain and ordinary meaning, and the
    Court may consult a dictionary to determine that meaning. TMW Enterprises, Inc v Dep’t of
    Treasury, 
    285 Mich. App. 167
    , 172; 775 NW2d 342 (2009).
    On appeal, father and grandparents limit their arguments to whether an order regarding
    grandparenting time is a postjudgment order affecting the custody of a minor under MCR
    7.202(6)(a)(iii). However, this Court was not tasked by the Supreme Court with only
    determining whether an order regarding parenting time was a “final judgment” or “final order”
    under MCR 7.202(6)(a)(iii). It was also tasked with determining whether an order regarding
    grandparenting time would otherwise be appealable by right under MCR 7.203(A). 
    Varran, 497 Mich. at 929
    ; 
    Varran, 497 Mich. at 928
    . Under MCR 7.203(A), this Court has jurisdiction of an
    appeal filed from a judgment or order of the trial court, as defined in MCR 7.202(6), MCR
    7.203(A)(1), or from a judgment or order by which an appeal of right has been established by
    law or court rule, MCR 7.203(A)(2). There is no law or court rule providing an appeal by right
    from an order regarding grandparenting time. Thus, under MCR 7.203(A), there is only an
    appeal by right from an order regarding grandparenting time if the order is a “final order” or
    “final judgment” as defined in MCR 7.202(6). MCR 7.203(A)(1).
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    Two definitions of a “final judgment” or “final order” are potentially applicable to the
    present case: (1) “the first judgment or order that disposes of all the claims and adjudicates the
    rights and liabilities of all the parties, including such an order entered after reversal of an earlier
    final judgment, MCR 7.202(6)(a)(i); and (2) “a postjudgment order affecting the custody of a
    minor,” MCR 7.202(6)(a)(iii). We will address each in turn.
    The grandparenting time statute provides two ways that an action for grandparenting time
    can be commenced. MCL 722.27b(3) provides:
    A grandparent seeking a grandparenting time order shall commence an
    action for grandparenting time, as follows:
    (a) If the circuit court has continuing jurisdiction over the child, the child’s
    grandparent shall seek a grandparenting time order by filing a motion with the
    circuit court in the county where the court has continuing jurisdiction.
    (b) If the circuit court does not have continuing jurisdiction over the child,
    the child’s grandparent shall seek a grandparenting time order by filing a
    complaint in the circuit court for the county where the child resides.
    The grandparents did not commence their action for grandparenting time by filing a
    complaint in this matter. Instead, a child custody dispute concerning A was initiated by A’s
    mother in the trial court in 2003. Grandparents sought grandparenting time by filing a motion
    with the trial court in that case. The trial court found that entry of a grandparenting time order
    would be in the best interests of A and entered such an order on May 30, 2014. Because the May
    30, 2014, order provided a grandparenting time schedule, it disposed of grandparents’ claim for
    grandparenting time and adjudicated the rights and liabilities of father and grandparents. It
    cannot be ignored, however, that MCR 7.202(6)(a)(i) specifically defines a “final judgment” or
    “final order” to mean “the first judgment or order that disposes of all the claims and adjudicates
    the rights and liabilities of all the parties . . . .” (emphasis added). Use of the singular definite
    article “the” before “first judgment” contemplates one order in a civil action. See, e.g., Massey v
    Mandell, 
    462 Mich. 375
    , 382 n 5; 614 NW2d 70 (2000). When A’s mother initiated the custody
    case in 2003, the parties to that case were mother and father and the first order that disposed of
    the claims and adjudicated all the rights and liabilities of mother and father was the February
    2004 consent order regarding custody, parenting time, and support of A. Thus, under the
    definition of MCR 7.202(6)(a)(i), the February 2004 consent order was the “final judgment” or
    “final order.” Because there was no reversal of the February 2004 consent order, no subsequent
    order in the case could be considered a “final judgment” or “final order” under MCR
    7.202(6)(a)(i). The May 31, 2014, order in this case is therefore not a “final judgment” or “final
    order” under MCR 7.202(6)(a)(i).
    We next turn to whether an order regarding grandparenting time is a postjudgment order
    affecting the custody of a minor under MCR 7.202(6)(a)(iii). Helpful to this Court’s resolution
    is a review of the few cases that have addressed MCR 7.202(6)(a)(iii). In Thurston v Escamilla,
    
    469 Mich. 1009
    ; 677 NW2d 28 (2004), our Supreme Court determined that a post-divorce
    judgment order granting one of the parent’s motion for a change of domicile was an order
    affecting the custody of the minor and was thus a final order, appealable by right. In that case,
    -4-
    the divorce judgment had previously awarded joint legal and physical custody to both parties and
    the change of domicile would allow one of the parties to move, with the child, to New York.
    In Wardell v 
    Hincka, 297 Mich. App. at 132-133
    , a panel of this Court took a close look at
    the definition of “affect” when determining whether the denial of a post-judgment motion for
    change of custody was an order “affecting the custody of a minor” under MCR 7.202(6)(a)(iii)
    and thus appealable as of right:
    Black's Law Dictionary defines “affect” as “[m]ost generally, to produce an effect
    on; to influence in some way.” Black's Law Dictionary (9th ed.), p. 65. In a
    custody dispute, one could argue, as plaintiff does, that if the trial court's order
    does not change custody, it does not produce an effect on custody and therefore is
    not appealable of right. However, one could also argue that when making
    determinations regarding the custody of a minor, a trial court's ruling necessarily
    has an effect on and influences where the child will live and, therefore, is one
    affecting the custody of a minor. Furthermore, the context in which the term is
    used supports the latter interpretation. MCR 7.202(6)(a)(iii) carves out as a final
    order among postjudgment orders in domestic relations actions those that affect
    the custody of a minor, not those that “change” the custody of a minor. As this
    Court's long history of treating orders denying motions to change custody as
    orders appealable by right demonstrates, a decision regarding the custody of a
    minor is of the utmost importance regardless of whether the decision changes the
    custody situation or keeps it as is. We interpret MCR 7.202(6)(a)(iii) as including
    orders wherein a motion to change custody has been denied.
    In Rains v Rains, 
    301 Mich. App. 313
    , 321-22; 836 NW2d 709 (2013), the trial court
    awarded the parties joint legal and physical custody of their child in a judgment of divorce. The
    judgment also established a parenting-time schedule. A couple of years later, the mother moved
    for a change in domicile, seeking to move the child with her to Traverse City and to modify the
    parenting time schedule. The father, in response, moved for primary physical custody. The trial
    court denied the mother’s request for a change in domicile and this Court found that the mother
    presented an appeal from a final order under MCR 7.202(6)(a)(iii), despite the father’s claim that
    because the trial court’s decision effectively left the parties’ custody arrangement as it was, it did
    not affect the custody of the minor child. The Rains Court based its decision, in part on 
    Wardell, supra
    , noting that under Wardell, a trial court need not change a custodial arrangement in order
    for its decision to affect custody. 
    Rains, 301 Mich. App. at 323
    . Rather, the inquiry was “whether
    the trial court's order denying plaintiff's motion for a change of domicile influences where the
    child will live, regardless of whether the trial court's ultimate decision keeps the custody
    situation ‘as is.’ ” 
    Rains, 301 Mich. App. at 321
    . From Rains and Wardell, it can be gleaned that
    where a motion addresses the amount of time a parent spends with a child such that it would
    potentially cause a change in the established custodial environment, an order regarding that
    motion is a final order under MCR 7.202(6)(a)(iii).
    MCR 7.202(6)(a)(iii) requires that the order, to be considered a final order appealable by
    right affects the “custody” of the minor child. “Custody,” like “affect,” is not defined in Chapter
    7 of the Michigan Court Rules. The term “custody,” as used in the family law context is,
    however, defined in Black’s Law Dictionary (10th ed) as the following:
    -5-
    The care, control, and maintenance of a child awarded by a court to a
    responsible adult. Custody involves legal custody (decision-making authority)
    and physical custody (caregiving authority), and an award of custody [usually]
    grants both rights . . . .
    Further, “the Child Custody Act draws a distinction between physical custody and legal custody:
    Physical custody pertains to where the child shall physically ‘reside,’ whereas legal custody is
    understood to mean decision-making authority as to important decisions affecting the child’s
    welfare.” Grange Ins Co of Mich v Lawrence, 
    494 Mich. 475
    , 511; 835 NW2d 363 (2013). We
    recognize that the Michigan cases thus far addressing MCR 7.202(6)(a)(iii) have addressed
    physical custody and have thus focused their inquiries on the effect that would take place on
    where the child would live. It would thus be tempting to conclude that this Court rule only
    comes into play when the physical custody of a child is at issue. Although there is a distinction
    between physical and legal custody, MCR 7.202(6)(a)(iii) contains no distinguishing or limiting
    language. Based on the plain language of the terms used in MCR 7.202(6)(a)(iii) then, a
    “postjudgment order affecting the custody of a minor” is an order that produces an effect on or
    influences in some way the legal custody or physical custody of a minor.
    The grandparenting time statute, MCL 722.27b, does not grant legal custody or physical
    custody of a child to a grandparent who has obtained a grandparenting time order. Thus, an
    order for grandparenting time cannot alter or change the legal custody or physical custody of a
    child. But that does not mean that an order for grandparenting time cannot affect (i.e., produce
    an effect on or influence) the custody of a child. In 
    Thurston, 496 Mich. at 1009
    , for example,
    despite the fact that the trial court’s order that granted the mother’s motion for change in
    domicile did not alter the award of joint legal and physical custody, the Supreme Court still held
    that the order was one affecting the custody of a minor.
    According to father, an order for grandparenting time is one that affects the custody of a
    minor because it interferes with a parent’s right to determine the care, custody, and control of his
    or her child. A parent has a fundamental right, one that is protected by the Due Process Clause
    of the Fourteenth Amendment, to make decisions concerning the care, custody, and control of his
    or her child. Troxel v Granville, 
    530 U.S. 57
    , 66; 
    120 S. Ct. 2054
    ; 
    147 L. Ed. 2d 49
    (2001) (opinion
    of O’Connor, J.); In re Sanders, 
    495 Mich. 394
    , 409; 852 NW2d 524 (2014). It cannot be
    disputed that a grandparenting time order interferes with a parent’s fundamental right to make
    decisions concerning the care, custody, and control of a child. Although a parent has denied
    grandparenting time, a grandparent may obtain an order for grandparenting time if the
    grandparent proves by a preponderance of the evidence that the denial of grandparenting time
    will create a substantial risk of harm to the child and if the trial court finds by a preponderance of
    the evidence that a grandparenting time order is in the child’s best interests. MCL 722.27b(4)(b),
    (6). Because a grandparenting time order overrides a parent’s legal decision to deny
    grandparenting time, a grandparenting time order interferes with a parent’s fundamental right to
    make decisions concerning the care, custody, and control of his or her child. Thus, where a
    parent has legal custody of the child, an order regarding grandparenting time is a postjudgment
    order affecting the custody of a minor. MCL 7.202(6)(a)(iii). Because father had legal custody
    -6-
    of A, we hold that the May 30, 2014, order was a “final judgment” or “final order” under MCL
    7.202(6)(a)(iii) and, therefore, appealable by right, MCR 7.202(A)(1).
    It is true, as the dissent points out, that the award or denial of grandparenting time did not
    change the legal custody arrangement between father and now-deceased mother and did not
    deprive father of sole legal custody of A. But a “change” in custody is not what is required
    under MCR 7.202(6)(a)(iii)—the language of the rule requires only an order “affecting” the
    custody, which is materially different. Furthermore, it cannot be ignored that this dispute does
    not concern a motion to resolve a postjudgment dispute between two parents. Generally, where
    postjudgment custody issues warrant the trial court’s involvement it is because the two people
    who have the same fundamental rights to the care and custody of the same child (including
    decision-making authority) are at odds and the court is required to resolve a stalemate. In this
    case, however, the dispute concerns the trial court’s award of visitation to a third party—one
    who is not vested with the same fundamental rights that are ordinarily reserved only for
    parents—and against the express decision of A’s only living parent and thus the only parent with
    legal and physical custody. Moreover, during those periods of visitation, this third party will
    impliedly have at least some of the rights generally reserved to legal and custodial parents
    (whether to and how to treat the child if he is not feeling well, whether to expose the child to
    religion and religious practices, what persons, television programs and movies to expose the
    child to, etc.).
    Based on the above and pursuant to the Supreme Court’s remand order in Docket No.
    322437, we thus take jurisdiction over father’s claim of appeal and address the merits of the
    arguments raised by father. We will also treat the claim of appeal in Docket No. 321866 as an
    application for leave to appeal and grant it.
    II. Constitutionality of Grandparenting Time Statute
    Father argues on appeal that that the grandparenting time statute is unconstitutional. We
    disagree.
    This Court reviews constitutional issues de novo. Mahaffey v Attorney General, 
    222 Mich. App. 325
    , 334; 564 NW2d 104 (1997). Statutes are presumed constitutional, and this Court
    has a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.
    Mayor of Cadillac v Blackburn, 
    306 Mich. App. 512
    , 516; 857 NW2d 529 (2014). The burden of
    proving that a statue is unconstitutional is on the party challenging the statute. In re Request for
    Advisory Opinion Regarding Constitutionality of 
    2005 PA 71
    , 
    479 Mich. 1
    , 11; 740 NW2d 444
    (2007).
    The Fourteenth Amendment of the United States Constitution, US Const, Am XIV,
    prohibits a state from depriving any person of life, liberty, or property, without due process of
    law. In re 
    Sanders, 495 Mich. at 409
    . This promise of due process includes “a substantive
    component that provides heightened protection against government interference with certain
    fundamental rights and liberty interests.” 
    Id. (quotation omitted).
    Among these fundamental
    rights is the right of parents to make decisions concerning the care, custody, and control of their
    children. 
    Id. In other
    words, “[p]arents have a significant interest in the companionship, care,
    custody, and management of their children, and the interest is an element of liberty protected by
    -7-
    due process.” In re JK, 
    468 Mich. 202
    , 210; 661 NW2d 216 (2003), reh den 
    468 Mich. 1239
    (2003).
    MCL 722.27b(4) provides:
    All of the following apply to an action for grandparenting time under
    [MCL 722.27b(3)]:
    ***
    (b) In order to give deference to the decisions of fit parents, it is presumed
    in a proceeding under this subsection 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 health. To rebut the presumption created in this
    subdivision, a grandparent filing a complaint or motion under this section 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 child’s mental,
    physical, or emotional health. If the grandparent does not overcome the
    presumption, the court shall dismiss the complaint or deny the motion.
    (c) If a court of appellate jurisdiction determines in a final and
    nonappealable judgment that the burden of proof described in subdivision (b) is
    unconstitutional, a grandparent filing a complaint or motion under this section
    must prove by clear and convincing evidence that the parent’s decision to deny
    grandparenting time creates a substantial risk of harm to the child’s mental,
    physical, or emotional health to rebut the presumption created in subdivision (b).
    Father argues that the parenting time statute is unconstitutional because of the use of
    preponderance of the evidence standard. He contends that use of a clear and convincing
    evidence standard is necessary to protect a parent’s fundamental right to make decisions
    concerning the care, custody, and control of their children. While father contends that the statute
    is unconstitutional both on its face and as applied to the present case, his argument, as presented,
    is actually only a facial challenge. “To make a successful facial challenge to the constitutionality
    of a statute, the challenger must establish that no set of circumstances exists under which the act
    would be valid.” Judicial Attorneys Ass’n v Michigan, 
    459 Mich. 291
    , 303; 586 NW2d 894
    (1998). In contrast, an as-applied challenge “alleges a present infringement or denial of a
    specific right or of a particular injury in process of actual execution of government action.”
    Bonner v Brighton, 
    495 Mich. 209
    , 223 n 27; 848 NW2d 380 (2014).
    “The function of a standard of proof, as that concept is embodied in the Due Process
    Clause and in the realm of factfinding, is to instruct the factfinder concerning the degree of
    confidence our society thinks he should have in the correctness of factual conclusions for a
    particular type of adjudication.” Cruzan v Director, Missouri Dep’t of Health, 
    497 U.S. 261
    , 282;
    
    110 S. Ct. 2841
    ; 
    111 L. Ed. 2d 224
    (1990) (quotations omitted). “[I]n any given proceeding, the
    minimum standard of proof tolerated by the due process requirement reflects not only the weight
    of the private and public interests affected, but also a societal judgment about how the risk of
    error should be distributed between the litigants.” Santosky v Kramer, 
    455 U.S. 745
    , 755; 102 S
    -8-
    Ct 1388; 
    71 L. Ed. 2d 599
    (1982). “Thus, while private parties may be interested intensely in a
    civil dispute over money damages, application of a ‘fair preponderance of the evidence’ standard
    indicates both society’s ‘minimal concern with the outcome’ and a conclusion that the litigants
    should ‘share the risk of error in roughly equal fashion.’ ” 
    Id. The United
    States Supreme Court
    has mandated an intermediate standard of proof—clear and convincing evidence—when the
    individual interests at stake are both “particularly important” and “more substantial than mere
    loss of money.” 
    Id. In Santosky,
    the United States Supreme Court held that a state, before it
    may terminate parental rights, must support its allegations by clear and convincing evidence. 
    Id. at 747-748,
    768-770.
    Father is correct that citing Troxel v Granville, 
    530 U.S. 57
    , the Supreme Court has
    recognized that one of the oldest recognized liberty interests is that of a parent to determine the
    care, custody and control, including the associations of their children. While the Supreme Court
    in Troxel did address a grandparent visitation statute and find it unconstitutional, the statute in
    this case is not contrary to Troxel.
    In 
    Troxel, 530 U.S. at 57
    , a Washington statute provided that “[a]ny person may petition
    the court for visitation rights” and that “[t]he court may order visitation rights for any person
    when visitation may serve the best interest of the child.” Under this statute, the grandparents
    moved for greater visitation with their two granddaughters than the children’s mother would
    allow. The trial court granted the requested visitation. The United States Supreme Court held
    that the Washington statute was unconstitutional. According to the Court, the Washington
    statute when applied to the case, infringed on the mother’s fundamental rights as a parent. 
    Id. at 67-68,
    72-73. It was never alleged, and there was no finding, that the mother was an unfit
    parent. 
    Id. This was
    important, the Court stated, because “there is a presumption that fit parents
    act in the best interests of their children.” 
    Id. at 68.
    The Court explained that the problem was
    not that the trial court intervened but that when it did, it gave no special weight to the mother’s
    determination of her daughters’ best interests. 
    Id. at 69.
    “[I]f a fit parent’s decision of the kind
    at issue here becomes subject to judicial review, the court must accord at least some special
    weight to the parent’s own determination.” 
    Id. at 70.
    The Court also noted that there was no
    allegation that the mother ever sought to preclude all visitation, and the trial court gave no
    weight to the mother’s acquiescence to some visitation. 
    Id. The Court
    concluded that the
    Washington statute was unconstitutional as applied because it failed to accord the determination
    of the mother, a fit parent, any material weight. 
    Id. at 72.
    According to Troxel, then, in order to
    protect a parent’s fundamental right to raise his or her children, a visitation statute must require
    that the trial court accord deference to the decisions of a fit parent regarding third-party
    visitation.
    Here, the grandparenting time statute requires that a trial court accord deference to a fit
    parent’s decision to deny grandparenting time. There is a presumption that a fit parent’s decision
    to deny grandparenting time does not create a substantial risk of harm to the child. MCL
    722.27b(4). To rebut this presumption, a grandparent must prove by a preponderance of the
    evidence that the parent’s decision creates a substantial risk of harm to the child. 
    Id. Thus, the
    grandparenting time statute does not allow a trial court to grant grandparenting time simply
    because it disagrees with the parent’s decision. It thus abides by the Troxel deference
    requirement. The extent of deference that must be accorded, however, was not discussed in
    -9-
    Troxel and forms the heart of father’s argument—that the amount of deference required by the
    statute is inadequate and thus renders the statute unconstitutional.
    On this issue, father relies principally on Hunter v Hunter, 
    484 Mich. 247
    ; 771 NW2d 694
    (2009). In Hunter, 
    484 Mich. 247
    , the Supreme Court addressed the conflicting presumptions
    that arise under the CCA when there is a custody dispute between a parent and a third-party with
    whom a child has an established custodial environment. Under MCL 722.25(1), in a custody
    dispute between a parent and a third party, a court “shall presume that the best interests of the
    child are served by awarding custody to the parent or parents, unless the contrary is shown by
    clear and convincing evidence.” 
    Id. at 258.
    Under MCL 722.27(1)(c), a court may not modify a
    previous custody order or issue a new custody order so as to change the established custodial
    environment unless there is clear and convincing evidence that the change is in the best interest
    of the child. 
    Id. at 259.
    The Supreme Court held that, in order to protect a fit parent’s
    fundamental constitutional rights, the parental presumption of MCL 722.25(1) must control over
    the presumption in favor of an established custodial environment in MCL 722.27(1)(c). 
    Id. at 263-264.
    The Supreme Court then addressed a “remaining constitutional question” regarding the
    amount of deference due under Troxel to fit parents. 
    Id. at 264.
    It concluded that MCL
    722.25(1) provided sufficient deference to fit parents’ fundamental rights to the care, custody,
    and management of their children because it requires, in order to rebut the parental presumption,
    clear and convincing evidence that custody by the parent is not in the child’s best interests. 
    Id. at 264-265.
    The Supreme Court summarized the clear and convincing evidence standard:
    The clear and convincing evidence standard is “the most demanding
    standard applied in civil cases . . . . This showing must “ ‘produce[] in the mind
    of the trier of fact a firm belief or conviction as to the truth of the allegations
    sought to be established, evidence so clear, direct and weighty and convincing as
    to enable [the fact-finder] to come to a clear conviction, without hesitancy, of the
    truth of the precise facts in issue.’ ” [Id. at 265.]
    The Supreme Court concluded that requiring a third party to establish by clear and convincing
    evidence that it is not in the child’s best interests for the parent to have custody “was entirely
    consistent with Troxel’s holding.” 
    Id. It explained:
    “Although a fit parent is presumed to act in
    his or her child’s best interests, a court need give the parent’s decision only a ‘presumption of
    validity’ or ‘some weight.’ That is precisely what MCL 722.25(1) does when it requires clear
    and convincing evidence to rebut the presumption.” 
    Id. Hunter is
    minimally instructive in the present case. The Supreme Court in Hunter merely
    concluded that MCL 722.25(1) provided sufficient deference to a fit parent’s fundamental rights
    to the care, custody, and management of a child because it required, in order to rebut the parental
    presumption, clear and convincing evidence that custody by the parent was not in the child’s best
    interest. However, in Hunter, a preponderance of the evidence standard was not at issue, nor was
    it ever discussed. The Supreme Court never said that a clear and convincing evidence standard,
    rather than a preponderance of the evidence standard, was constitutionally mandated. It simply
    stated that the standard, as stated in the statute was sufficient.
    As previously stated, the grandparenting time statute is consistent with Troxel. Because
    the grandparenting time statute presumes that a fit parent’s decision to deny grandparenting time
    -10-
    does not create a substantial risk of harm to the child, and because it requires a grandparent to
    prove by a preponderance of the evidence that the parent’s decision creates a substantial risk of
    harm to the child, the statute gives deference to the decisions of a fit parent. DeRose v DeRose,
    
    469 Mich. 320
    , 332; 666 NW2d 636 (2003).1 It does not allow the trial court to grant
    grandparenting time simply because it disagrees with the parent’s decision. 
    Id. A parent’s
    fundamental right to make decisions concerning the care, custody, and control of their children is
    not most at jeopardy when a grandparent petitions a court for grandparenting time. See 
    Hunter, 484 Mich. at 269
    . An order granting grandparenting time does not sever, permanently and
    irrevocably, a parent’s parental rights to a child, and it remains subject to modification and
    termination. Thus, we conclude that, because due process concerns are not at their highest in
    cases involving requests for grandparenting time, see 
    id., the requirement
    that grandparents, in
    order to rebut the presumption given to a fit parent’s decision, prove by a preponderance of the
    evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm
    to the child is sufficient to protect the fundamental rights of parents. Father’s facial challenge to
    the constitutionality of the grandparenting statute thus fails.
    III. Subject Matter Jurisdiction
    Father next contends that the trial court lacked jurisdiction to hear grandparents motion
    for grandparenting time. We disagree.
    As explained in Issue 
    I, supra
    , there are two ways that an action for grandparenting time
    can be commenced: (1) “[i]f the circuit court has continuing jurisdiction over the child, the
    child’s grandparent shall seek a grandparenting time order by filing a motion with the circuit
    court in the county where the court has continuing jurisdiction” and (2) “[i]f the circuit court
    does not have continuing jurisdiction over the child, the child’s grandparent shall seek a
    grandparenting time order by filing a complaint in the circuit court for the county where the child
    resides.” MCL 722.27b(3).
    Father argues that the trial court lacked subject-matter jurisdiction over grandparents’
    motion for grandparenting time because it did not have continuing jurisdiction over A.
    According to father, the trial court did not have continuing jurisdiction over A because father
    was awarded sole legal and physical custody over A in 2004 and mother died in 2007.
    Subject-matter jurisdiction:
    1
    The Legislature rewrote the grandparenting time statute in 2004 (
    2004 PA 542
    ) after the
    DeRose 
    Court, 469 Mich. at 333-334
    , held that the grandparenting time statute was
    unconstitutional under Troxel because it did not require that any deference be given to the
    decisions that a fit parent makes for his or her child. The Legislature included MCL
    722.27b(4)(a) in the rewritten grandparenting time statute so that the statute would comply with
    Troxel and DeRose. See Keenan v Dawson, 
    275 Mich. App. 671
    , 678-679,; 739 NW2d 681
    (2007) where this Court stated that Troxel and DeRose “directly led to the 2004 amendment of
    MCL 722.27b” and that, in response to the those decisions, the Legislature attempted to correct
    the constitutional infirmities of the grandparenting time statute.
    -11-
    is the right of the court to exercise judicial power over that class of cases, not the
    particular case before it, but rather the abstract power to try a case of the kind or
    character of the one pending; and not whether the particular case is one that
    presents a cause of action, or under the particular facts is triable before the court
    in which it is pending, because of some inherent facts which exist and may be
    developed during the trial. [Joy v Two-Bit Corp, 
    287 Mich. 244
    , 253-254; 
    283 N.W. 45
    (1938) (quotation omitted).]
    A trial court’s lack of subject-matter jurisdiction renders a trial court’s judgment void. Bowie v
    Arder, 
    441 Mich. 23
    , 56; 490 NW2d 568 (1992); Altman v Nelson, 
    197 Mich. App. 467
    , 472-473;
    495 NW2d 826 (1992). However, the only support father has cited in support of his argument is
    an unpublished opinion per curiam of the Court of Appeals. Unpublished decisions are not
    binding upon the Court. MCR 7.215(C)(1).
    Trial courts have subject-matter jurisdiction over child custody disputes. 
    Bowie, 441 Mich. at 39
    . Additionally, the power to hear and decide requests by a child’s grandparents for
    grandparenting time has not been prohibited or given exclusively to another court. See 
    id. Pursuant to
    the CCA, when a child custody dispute has been submitted to the trial court, either as
    an original action under the CCA or has arisen incidentally from another action in the trial court,
    the trial court may, among other actions, “upon petition consider the reasonable grandparenting
    time of maternal or paternal grandparents as provided in [MCL 722.27b.]” MCL 722.27(f).
    Accordingly, the trial court had subject-matter jurisdiction to hear grandparents’ motion for
    grandparenting time. It had the right to exercise judicial power over requests by a child’s
    grandparents for grandparenting time. 
    Joy, 287 Mich. at 253-254
    .
    IV. Interpretation of MCL 722.27b
    Father contends that to obtain grandparenting time under the statute, a grandparent must
    first demonstrate that a fit parent’s decision to deny grandparenting time creates a substantial risk
    of harm to the child and that he did not deny, i.e., refuse or reject all visitation between
    grandparents and A. According to father, grandparents are thus not eligible for relief under MCL
    722.27b and the trial court erred in interpreting the word “deny” in any other manner in order to
    allow relief.
    “Orders concerning grandparenting time must be affirmed on appeal unless the trial
    court’s findings of fact were against the great weight of the evidence, the court committed a
    palpable abuse of discretion, or the court made a clear legal error on a major issue.” Keenan v
    Dawson, 
    275 Mich. App. 671
    , 679; 739 NW2d 681 (2007). Issues of statutory interpretation are
    questions of law. Koontz v Ameritech Servs, Inc, 
    466 Mich. 304
    , 309; 645 NW2d 34 (2002).
    Questions of law are reviewed for clear legal error. McCain v McCain, 229 Mich App 123,125;
    580 NW2d 485 (1998). “Clear legal error occurs when the trial court errs in its choice,
    interpretation, or application of the existing law.” Sturgis v Sturgis, 
    302 Mich. App. 706
    , 710; 840
    NW2d 408 (2013).
    The goal of judicial interpretation of statutes is to ascertain and give effect to the intent of
    the Legislature. Tevis v Amex Assurance Co, 
    283 Mich. App. 76
    , 81; 770 NW2d 16 (2009), lv den
    
    485 Mich. 926
    (2009). The rules of statutory construction serve as guides to assist in determining
    -12-
    legislative intent with a greater degree of certainty. Niles Twp v Berrien Co Bd of Comm’rs, 
    261 Mich. App. 308
    , 313; 683 NW2d 148 (2004). Statutory language should be reasonably construed,
    keeping in mind the purpose of the statute. Rose Hill Ctr, Inc v Holly Twp, 
    224 Mich. App. 28
    ,
    32; 568 NW2d 332 (1997). Once the intention of the Legislature is discovered, it must prevail
    over any conflicting rule of statutory construction. Thompson v Thompson, 
    261 Mich. App. 353
    ,
    362 n 2; 683 NW2d 250 (2004).
    The first criterion in determining legislative intent is the language of the statute. 
    Tevis, 283 Mich. App. at 81
    . If the language of the statute is unambiguous, the Legislature is presumed
    to have intended the meaning clearly expressed, and a court must enforce the statute as written.
    Ameritech Publishing, Inc v Dep’t of Treasury, 
    281 Mich. App. 132
    , 136; 761 NW2d 470 (2008),
    lv den 
    482 Mich. 1071
    (2008). Every word of a statute is presumed to have some meaning, and
    this Court must avoid an interpretation that renders any part of the statute surplusage or nugatory.
    Mich Farm Bureau v Dep’t of Environmental Quality, 
    292 Mich. App. 106
    , 132; 807 NW2d 866
    (2011). Effect should be given to every sentence, phrase, clause, and word. 
    Id. Each word,
    unless defined, is to be given its plain and ordinary meaning, and the Court may consult a
    dictionary to determine that meaning. TMW Enterprises, 
    Inc, 285 Mich. App. at 172
    .
    Additionally, “a court may read nothing into an unambiguous statute that is not within the
    manifest intent of the Legislature as derived from the words of the statute itself.” Roberts v
    Mecosta Co Gen Hosp, 
    466 Mich. 57
    , 63; 642 NW2d 663 (2002).
    Another rule of statutory construction is that statutory provisions are not to be read in
    isolation. Robinson v Lansing, 
    486 Mich. 1
    , 15; 782 NW2d 171 (2010). Rather, to discern the
    true intent of the Legislature, statutory provisions must be read as a whole. 
    Id. Father’s argument
    is premised upon MCL 722.27b(4) which states, in relevant part, as
    follows:
    All of the following apply to an action for grandparenting time under [MCL
    722.27b(3)]:
    ***
    (b) In order to give deference to the decisions of fit parents, it is presumed
    in a proceeding under this subsection 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 health. To rebut the presumption created in this
    subdivision, a grandparent filing a complaint or motion under this section 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 child’s mental,
    physical, or emotional health. If the grandparent does not overcome the
    presumption, the court shall dismiss the complaint or deny the motion. [Emphasis
    added.]
    However, MCL 722.27b(1) provides:
    A child’s grandparent may seek a grandparenting time order under 1 or
    more of the following circumstances:
    -13-
    (a) An action for divorce, separate maintenance, or annulment involving
    the child’s parents is pending before the court.
    (b) The child’s parents are divorced, separated under a judgment of
    separate maintenance, or have had their marriage annulled.
    (c) The child’s parent who is a child of the grandparents is deceased.
    (d) The child’s parents have never been married, they are not residing in
    the same household, and paternity has been established by the completion of an
    acknowledgment of parentage under the acknowledgment of parentage act, 
    1996 PA 305
    , MCL 722.1001 to 722.1013, by an order of filiation entered under the
    paternity act, 
    1956 PA 205
    , MCL 722.711 to 722.730, or by a determination by a
    court of competent jurisdiction that the individual is the father of the child.[2]
    (e) Except as otherwise provided in [MCL 722.2b(13)], legal custody of
    the child has been given to a person other than the child’s parent, or the child is
    placed outside of and does not reside in the home of a parent.
    (f) In the year preceding the commencement of an action under subsection
    (3) for grandparenting time, the grandparent provided an established custodial
    environment for the child as described in [MCL 722.27], whether or not the
    grandparent had custody under a court order.
    Nothing in MCL 722.27b(1), which sets forth when a grandparent may seek a
    grandparenting time order, requires that there be a denial of grandparenting time before a
    grandparent may seek a grandparenting time order. In the present case, grandparents brought
    their motion for grandparenting time pursuant to MCL 722.27b(1)(d) and (f). Father has never
    disputed that, under MCL 722.27b(1)(d) and (f), grandparents could seek an order for
    grandparenting time. Thus, under MCL 722.27b(1), grandparents could seek an order of
    grandparenting time irrespective of whether father had completely denied them all
    grandparenting time with A.          Additionally, MCL 722.27b(4)(b) was included in the
    grandparenting time statute so that the statute would no longer be constitutionally infirm. See
    
    Keenan, 275 Mich. App. at 678-679
    . To withstand a constitutional challenge under Troxel and
    DeRose, a grandparenting time statute must require that a trial court give deference to a fit
    parent’s decision regarding visitation between his or her child and the child’s grandparent. See
    
    DeRose, 469 Mich. at 332-333
    . The Legislature’s intent in enacting MCL 722.27b(4)(b), then,
    was not to set forth requirements for when a grandparent could seek an order for grandparenting
    time (as it had already done in MCL 722.27b(1)), but merely to provide a scheme where a
    parent’s decision regarding visitation was given deference. This is the only logical conclusion
    2
    MCL 722.27b(2) prohibits a trial court from allowing the parent of a father who never married
    the child’s mother from seeking an order for grandparenting time if the father’s paternity has
    never been established.
    -14-
    when the grandparenting time statute is read as a whole and when the historical context and
    development of MCL 722.27b(4)(b) is considered.
    V. Expert Testimony
    Father argues that the trial court, upon concluding that grandparents’ expert, Dr.
    Fishman’s, testimony was not reliable, erred when it considered the statements that A made to
    Dr. Fishman as evidence. We disagree.
    A trial court’s decision regarding the admissibility of expert testimony is reviewed for an
    abuse of discretion, Surman v Surman, 
    277 Mich. App. 287
    , 304-305; 745 NW2d 802 (2007), as
    are all trial court’s evidentiary decisions, Taylor v Kent Radiology, PC, 
    286 Mich. App. 490
    , 519;
    780 NW2d 900 (2009). A trial court abuses its discretion if its decision results in an outcome
    outside the range of principled outcomes. 
    Surman, 277 Mich. App. at 305
    .
    MRE 702 provides:
    If the Court determines that scientific, technical, or other specialized
    knowledge will assist the trier of fact to understand the evidence or to determine a
    fact in issue, a witness qualified as an expert by knowledge, skill, experience,
    training, or education may testify thereto in the form of an opinion or otherwise if
    (1) the testimony is based on sufficient facts or data, (2) the testimony is the
    product of reliable principles and methods, and (3) the witness has applied the
    principles and methods reliably to the facts of the case.
    Under MRE 702, a trial court must act as a gatekeeper to ensure that all expert opinion testimony
    is reliable. Gilbert v DaimlerChrysler Corp, 
    470 Mich. 749
    , 783; 685 NW2d 391 (2004). MRE
    702 incorporates the standards of reliability that were described in Daubert3 by the United States
    Supreme Court. Edry v Adelman, 
    486 Mich. 634
    , 639; 786 NW2d 567 (2010). Under Daubert, a
    trial court must ensure that all expert opinion testimony is relevant and reliable. 
    Id. at 640.
    A
    trial court must determine the reliability of expert opinion testimony before the testimony may be
    admitted. Tobin v Providence Hosp, 
    244 Mich. App. 626
    , 647; 624 NW2d 548 (2001).
    The trial court initially qualified Dr. Fishman, a licensed, practicing psychologist, as an
    expert pursuant to MRE 702, and permitted her to testify as such. Dr. Fishman had been asked
    by grandparents to offer an expert opinion regarding the effect on A if he was not allowed to see
    grandparents. To reach an opinion, Dr. Fishman met with grandparents and A on several
    occasions. In a later order, the trial court disqualified Dr. Fishman as an expert, finding that her
    methods and opinions did not meet Daubert standards and indicated that it would disregard Dr.
    Fishman’s expert opinions.4 Nonetheless, in finding that there was a substantial risk of harm to
    3
    Daubert v Merrell Dow Pharmaceuticals, Inc, 
    509 U.S. 579
    ; 
    113 S. Ct. 2786
    ; 
    125 L. Ed. 2d 469
    (1993).
    4
    Grandparents make no argument on appeal that the trial court erred in determining that Dr.
    Fishman’s methods and opinions did not meet Daubert standards.
    -15-
    A’s mental and emotional health if grandparenting time was not granted, the trial court relied
    heavily on statements that A made to Dr. Fishman pointing out that father had affirmatively
    waived any hearsay objection to A’s statements made to her (which Dr. Fishman testified to and
    were contained in Dr. Fishman’s report that had been admitted into evidence).
    Many of A’s statements to Dr. Fishman were hearsay; they were out-of-court statements
    used for the truth of the matter asserted. See MRE 801. Hearsay is not admissible unless it falls
    within an exception. MRE 802. There has never been a claim by grandparents that any of A’s
    statements to Dr. Fishman fell within a hearsay exception. As indicated by grandparents,
    however, during the evidentiary hearing concerning Dr. Fishman’s testimony, father withdrew
    any hearsay objection to the admission of A’s statements. In considering A’s statements, the
    trial court relied on father’s withdrawal of the hearsay objection. Absent the withdrawal of such
    objection, many of A’s statements would have been inadmissible.
    Waiver is the voluntary and intentional relinquishment of a known right. MacInnes v
    MacInnes, 
    260 Mich. App. 280
    , 287; 677 NW2d 889 (2004). “One who waives his rights under a
    rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver
    has extinguished any error.” People v Carter, 
    462 Mich. 206
    , 215; 612 NW2d 144 (2000)
    (quotation omitted). Father voluntarily and intentionally withdrew his hearsay objection to A’s
    statements. Thus, father cannot now argue on appeal that the trial court erred in considering A’s
    statements because the statements were hearsay and did not fall within a hearsay exception.
    
    Carter, 462 Mich. at 215
    . Because father withdrew his hearsay objection to A’s statements,
    thereby allowing facts and data on which Dr. Fishman based her opinion to be admitted into
    evidence, father cannot now claim on appeal that the trial court erred when it considered A’s
    statements.
    VI. Substantial Risk of Harm
    Father avers that the trial court’s finding that grandparents proved that a denial of
    grandparenting time would create a substantial risk of harm was against the great weight of the
    evidence. We disagree.
    “Orders concerning grandparenting time must be affirmed on appeal unless the trial
    court’s findings of fact were against the great weight of the evidence, the court committed a
    palpable abuse of discretion, or the court made a clear legal error on a major issue.” 
    Keenan, 275 Mich. App. at 679
    . A trial court’s findings of fact are not against the great weight of the
    evidence unless the evidence clearly preponderates in the opposite direction. 
    Id. at 680.
    A trial
    court has superior fact-finding ability, and this Court must give deference to a trial court’s
    determination regarding the weight to assign evidence. See Berger v Berger, 
    277 Mich. App. 700
    ,
    715; 747 NW2d 336 (2008).
    We first note that the vast majority of father’s argument on this issue is premised on his
    prior argument—that the trial court erred in relying on A’s statements to Dr. Fishman. Father
    makes no argument that, if A’s statements to Dr. Fishman were properly considered, the trial
    court’s finding was still against the great weight of the evidence. Given our conclusion that the
    trial court properly considered A’s statements, we could simply affirm the trial court’s factual
    finding regarding a substantial risk of harm without any analysis. However, thoroughness
    -16-
    requires that we point out several salient portions of A’s statements to Dr. Fishman that showed,
    by a preponderance of the evidence, a denial of grandparenting time would create a substantial
    risk of harm to A’s mental, physical, or emotional health.
    A told Dr. Fishman that he feels as though he merely exists until the next time he gets to
    see his grandparents and is very sad about losing his grandparents. A stated that he had grown
    up referring to his grandparents as “Mom” and “Pop” and that he now felt as though he has lost
    the only home he had known and that he had been kidnapped due to being required to live with
    his father. A told Dr. Fishman that he is afraid of not being able to see his grandparents; that
    sometimes he is homesick and lonely; that grandparents’ house feels like home and that is where
    he belongs and is most welcome; and that, if he could not see grandparents anymore, his life
    would be horrible, he would be sad, angry, and depressed, and he would not have much to look
    forward to.
    As previously stated, the evidence showed that A lived with his grandparents for
    numerous years and that the grandparents raised A as their own child. A’s statements support
    that he saw his grandparents as parental figures and certainly show that not only did he want to
    spend time with them, he would be angry, sad and depressed if he could not. Under these
    circumstances, the trial court’s finding that a denial of grandparenting time would create a
    substantial risk of harm to A’s mental and emotional health did not clearly preponderate against
    the evidence. 
    Keenan, 275 Mich. App. at 680
    .
    Affirmed.
    /s/ Deborah A. Servitto
    /s/ Amy Ronayne Krause
    -17-