Frame v. Nehls

Levin, J.

(dissenting). Dustin Jay Nehls was bom out of wedlock to appellant, Gina E. Frame, and Jay Franklin Nehls on March 21, 1991. Stephen Nehls, the appellee, is the father of Jay Nehls and is Dustin’s grandfather.

The grandparents, Stephen Nehls and his wife, Ella, regularly visited their grandchild, Dustin, from his birth. From the time Dustin was four months old until he was ten months old, he and his parents lived with the grandparents.

*193After Dustin and his parents moved out of the grandparents’ home, the grandparents provided babysitting services for Dustin and cared for him at least once a week for over a year.

Jay Nehls and Gina Frame separated, and paternity proceedings were begun. Jay Nehls admitted paternity, was adjudicated to be the father, began paying support, and has visitation with Dustin pursuant to the court’s order of filiation.

The grandparents allege that after the conclusion of the paternity action, they were unable to see Dustin except when he visited his father, Jay, because Gina Frame denied them the weekly visitation they had before entry of the order of filiation.1 Stephen Nehls filed a petition for grandparent visitation in June, 1993. The circuit court granted Gina Frame’s motion for summary disposition, citing Nelson v Kendrick, 187 Mich App 367; 466 NW2d 402 (1991).

The Court of Appeals reversed, stating that Nelson v Kendrick had been incorrectly decided both as a matter of statutory construction and constitutional law.2 The Court said that “[classifications based on illegitimacy are subject to intermediate or ‘heightened’ scrutiny under the Equal Protection Clause of the Fourteenth Amendment,” citing Clark v Jeter, 486 US 456, 461; 108 S Ct 1910; 100 L Ed 2d 465 (1988). The Court observed that “[t]he grandparents of a child bom to married parents would be entitled to *194pursue visitation rights pursuant to § 7b” of the Child Custody Act, as amended by 1982 PA 340 to provide for grandparent visitation.3 The Court concluded that *195§ 7b, as construed by the circuit court, established classifications based on the legitimacy of the grandchild, and said:

[This] classification, seemingly based upon the fortuity of a marriage contract, is not related to an important governmental interest, and constitutes a deprivation of equal protection with regard to both the child and his grandfather.141

We agree with the Court of Appeals. The majority’s reading of the Child Custody Act violates the rule of construction that statutes should be read to avoid constitutional questions if violence will not be done thereby to the language of the statute.5

The majority’s reading of the act frustrates the legislative intent to ensure that the best interests of the child take first priority.

*196The act, as construed by the majority, denies equal protection of the laws to the grandchild and grandparent.

We would affirm the decision of the Court of Appeals.

i

Section 7b of the act (see n 3) authorizes a court to enter an order for grandparent visitation on a finding that visitation is in the best interests of the child when the union of a legitimate grandchild’s parents is dissolved by death, divorce, or separation.

We would hold, as a matter of statutory construction, that, the Legislature intended that a grandparent visitation order may be entered when the union of an illegitimate grandchild’s parents, who never married, is dissolved, if the putative father has been so adjudicated or otherwise is within the statutory definition. Because § 7b defines “child custody dispute” as “includ[ing]” the death, divorce, and legal separation of the parents, the Legislature did not intend to limit “child custody dispute” to only those situations. The act provides in effect that a grandchild visitation order may be entered by a court of competent jurisdiction for grandparents whose son was adjudicated to be the putative father.

We further address the statutory construction issue in part n.

No important governmental interest would be advanced by providing an opportunity for grandparent visitation when the union of the parents of a legitimate child has been dissolved, and denying such opportunity when the union of an illegitimate child’s parents is dissolved. The act, correctly construed, is *197constitutional, but, as construed by the majority, denies equal protection of the laws.

We further address the equal protection issue in part m.

n

The majority states that the act “clearly and unambiguously” defines a child custody dispute, and strictly limits the circumstances in which a grandparent may seek visitation.6 The majority further states that the question who has standing as a grandparent to seek visitation must be resolved as a “threshold matter”7 before and without regard to the provisions of the act calling for liberal construction.

A

The Child Custody Act provides: “This act is equitable in nature and shall be liberally construed and applied to establish promptly the rights of the child and the rights and duties of the parties involved.”8 This language does not express the “threshold” limitation inferred by the majority. Rather, it “clearly and unambiguously” references all provisions of the Child Custody Act, not “the provisions of this act except those addressing matters of standing.” This judicial rewriting of § 7b is unwarranted by the text and is legally erroneous.9

*198The majority attempts to justify its restrictive construction by noting legislative history indicating that grandparents will be allowed to petition for visitation only in “ ‘carefully limited circumstances.’ ”10 We agree that the Legislature did not intend to allow every grandparent to petition for visitation. We do not agree that the Legislature intended that standing questions should be resolved in a rigid manner without consideration of what might be in the child’s best interests.

Caring for children is of paramount importance in the emic system established by the Legislature in the Child Custody Act. The etically different statutory provisions of the Child Custody Act do not modify that theme of this emic system. 11 The majority observes the etic differences between the introductory provisions of the act and the standing provisions *199at issue, but ignores that, within the emic system established by the Legislature, no significance should be attributed to this distinction. The different provisions of the act comprise an emic unit. The grandparent visitation provisions cannot properly be construed without recognition of the paramount importance of protecting the child manifested throughout the emic system that is the Child Custody Act. The majority’s failure “disregard[s] the intent of the Legislature,”12 and, although it claims to be following the statute, constitutes a judicial rewriting of the act.

B

The act calls for liberal construction to determine the rights of the child first, the rights and duties of the parties second. If there is doubt concerning the act’s coverage, it should be resolved to best safeguard the grandchild’s rights. The mother’s desire to avoid a hearing and possibly court-mandated grandparent visitation should be subordinated to the grandchild’s interest in having communication with his grandparents if the trial court concludes, on a full evidentiary hearing, that such communication is in the grandchild’s best interests.

It should be emphasized that this case concerns whether there should be a hearing concerning what is in the best interests of the grandchild, not whether visitation should be ordered regardless of the love, affection, or responsibility of these grandparents.13

*200The majority recites the mantra of “clearly and unambiguously” to reach a technical decision. This Court should, rather, engage in a substantive analysis, and determine if the reasons for allowing a grandparent visitation petition after divorce or legal separation also obtain when the parents were living together with the child without benefit of clergy before they separated. Because an order of filiation providing for custody and visitation is the substantive equivalent of an order providing for custody and visitation in a divorce or separation proceeding, this Court should conclude that there was a “child custody dispute” within the meaning of the act.

c

The majority contends that “includes” should be read as a word of limitation. Once again, we agree with the majority that a child custody dispute should be read more narrowly in the grandparent visitation context than in other contexts of the act. This general conclusion does not, however, absolve this Court from deciding whether an order of filiation providing *201for custody and visitation might be within the narrower categories of “child custody dispute” set forth in § 7b(2).

The majority does not consider whether an order of filiation following separation of an unmarried couple is the substantive equivalent of a divorce proceeding. The import of the statute is that grandparents have the right to ask a court for visitation when a traditional family setting has broken down. In such a case, the grandparents are more likely to be squeezed out of meaningful communication with the grandchild, particularly if their child is not the custodial parent of the grandchild. Then the person who would otherwise provide the normal link between the grandparents and the grandchild might believe the visitation he has been authorized by the court provides inadequate time for both him and the grandparent, and, therefore, decline to share with the grandparents the limited time available with the grandchild.

Section 7b(2) provides for situations where, because of death or placement of the child with a nonfamily member, grandparents might again be deprived of communication by a person not inclined to share the child, particularly if a personality or child-rearing conflict develops between the grandparents and the person who has custody. The underlying principle is to allow grandparents to petition for visitation when circumstances make it unlikely they will obtain an appropriate opportunity to visit the grandchild.

D

The acrimony often present in divorces was, of course, one of the primary concerns of the Legisla*202ture in enacting the grandparent visitation statute. To maintain a grandchild’s continued communication with the extended family, the Legislature authorized petitions for visitation by grandparents likely to be caught in the middle of a difficult divorce.

Indiana has a similar statute, and an appellate court has explained the statutory rationale:

In most instances, a parent who has custody of a child will allow grandparent visitation. When a parent loses his or her custodial rights as a parent, that parent has a reduced right to participate in child-rearing decisions. It is precisely when one parent has less legal control over the child that the grandparent-grandchild relationship may be jeopardized. A grandparent whose child is the noncustodial parent may have difficulty obtaining visitation with the grandchild. [Lockhart v Lockhart, 603 NE2d 864, 865 (Ind App, 1992).[14]

The same concerns of unreasonable denial of grandparent communication are present when the parents never marry, but an order of filiation that establishes custody and visitation has been entered. There are then the same risks of vindictiveness and limited visitation. The custody and visitation provisions in an order of filiation may indicate a breakdown in the relationship between the. unwed parents that can fuel the same sort of disagreements and denial of visitation that occur in a divorce. In short, *203the reasons for allowing a petition for visitation in the context of a divorce, legal separation, or annulment are also present in the context of an order of filiation.15

*204E

The majority adverts to the Legislature’s failure in 1991 to enact an amendment to the Child Custody Act that would have broadened the categories of grandparents entitled to petition for visitation.16 The failure of the Legislature to enact a bill often means nothing. Perhaps the amendment was not enacted because the Legislature thought it unnecessary, believing the additions were already implied in current law. Perhaps other provisions in the same bill were unpalatable.17 Other issues may have been considered more pressing so that, even if a majority could have been mustered for the changes, the bill did not come to a vote because those favoring the changes preferred to spend the time and political capital necessary to enact another bill. As Sutherland noted, “Action on a proposed amendment is not a significant aid to interpretation of an act that was passed years before.”18

Because there are so many reasons for not enacting a postenactment amendment, no real guidance can be derived from such non-“decisions” of the Legislature.

*205F

Section 7b(3) provides in part:

A grandchild visitation order shall not be entered for the parents of a putative father unless the father has acknowledged paternity in writing, has been adjudicated to be the father by a court of competent jurisdiction, or has contributed regularly to the support of the child or children.

The majority declares that subsection 3 is procedural only, thus reading in still another limitation for grandparents whose son is the putative father — -having already required that the grandparents have standing as defined by the majority.19 Under the majority’s construction, the relevant portion of subsection 3 only applies to grandparents whose son has died, leaving behind an illegitimate child.

The only situation they posit when a grandparent would be able to petition, as contemplated by § 7b(3), for visitation of a child bom out of wedlock, whose father is alive, is when the parents later marry and then divorce. Under the majority’s cribbed reading, subsection 3 applies only when a putative father has died, thus construing out of § 7b(3) any meaning for an illegitimate grandchild whose parents, who never married, are still alive.

G

1994 PA 388 requires a circuit court to enter a custody and visitation award anytime an order of filiation is entered. The law amended sections of the Paternity Act and added MCL 722.717b; MSA 25.497(2), and provides:

*206If the court makes a determination of paternity and there is no dispute regarding custody, the court shall include in the order of filiation specific provisions for the custody and visitation of the child as provided in the child custody act of 1970, . . . being sections 722.21 to 722.29 of the Michigan Compiled Laws.

This provision references the entire Child Custody Act as the basis for custody decisions under an order of filiation. This includes § 7b concerning grandparent visitation. This most recent amendment should be read to modify the less expansive definition the majority finds to be more specific in § 7b(2).20

m

The Court of Appeals observed that the United States Supreme Court, in Clark v Jeter, supra, p 461, declared that generally “a level of intermediate scrutiny . . . has been applied to discriminatory classifications based on sex or illegitimacy,” and said:

To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.

As set forth earlier at the conclusion of part I, no important governmental objective would be advanced by providing an opportunity for grandparent visitation when the union of the parents of a legitimate child has been dissolved, and denying such opportunity when the union of an illegitimate child’s parents is dissolved. The act, correctly construed, is constitutional, but, as construed by the majority, denies equal protection of the laws.

*207A

The majority contends that only the illegitimate child, and not the grandparents, can assert an equal protection claim entitled to midlevel scrutiny. The short answer is to be found in Glona v American Guarantee & Liability Ins Co, 391 US 73; 88 S Ct 1515; 20 L Ed 2d 441 (1968), where the United States Supreme Court held that a wrongful death statute that authorized actions by mothers of legitimate children, but did not authorize actions by mothers of illegitimate children, denied the mother of an illegitimate child the equal protection of the laws. The United States Supreme Court would not distinguish between a mother and a grandmother or grandparents in this regard.

In the companion case of Levy v Louisiana, 391 US 68; 88 S Ct 1509; 20 L Ed 2d 436 (1968), the Court held that a wrongful death statute that authorized actions in behalf of legitimate children, but did not authorize actions in behalf of illegitimate children, denied illegitimate children equal protection of the laws.

B

While the Glona opinion employed the language of rational basis scrutiny, a substantive evaluation of that and other cases challenging distinctions based on illegitimacy supports the conclusion of hornbook writers that the United States Supreme Court was actually applying midlevel scrutiny before it formally adopted that level of scrutiny for illegitimacy classifications in 1988:

This standard of intermediate scrutiny, which falls between the rational relationship test and the strict scrutiny *208test in terms of the strictness of the judicial review of classification, was not formally adopted for illegitimacy classifications until 1988. Nevertheless, the Supreme Court’s pre-1988 decisions are consistent with this form of intermediate standard of review. [Nowak & Rotunda, Constitutional Law (4th ed), § 14.14, p 719 (emphasis added).]

This conclusion is bolstered by Justice O’Connor’s opinion for the Court in Clark announcing the formal adoption of the heightened scrutiny standard. She noted that midlevel scrutiny “generally has been applied to discriminatory classifications based on sex or illegitimacy.”21 There is no hint in that unanimous opinion that the Court was adopting a higher standard than it had imposed before; it simply recognized that its previous child illegitimacy decisions had in fact, if not in name, been applying midlevel scrutiny. See also Pickett v Brown, 462 US 1, 8; 103 S Ct 2199; 76 L Ed 2d 372 (1983), “In view of the history of treating illegitimate children less favorably than legitimate ones, we have subjected statutory classifications based on illegitimacy to a heightened level of scrutiny.”

Levy, decided with Glona, also supports this conclusion because it distinguished the “great latitude” given social and economic legislation from the review it was exercising in that case where the rights being asserted “involve the intimate, familial relationship between a child and his own mother.”22

There is no reason to suppose that the United States Supreme Court would distinguish between the *209bonds of mother and child and grandparent and child for purposes of equal protection analysis in this case.

c

Because the Child Custody Act expressly provides for visitation by parents of putative fathers whose paternity has been adjudicated, the problem with which the Court struggled in Parham v Hughes, 441 US 347; 99 S Ct 1742; 60 L Ed 2d 269 (1979), and other cases there referred to, is not presented in the instant case.

We acknowledge that the state can establish some requirements for the father of an illegitimate child to establish paternity because of the unique problems of proof such an inquiry creates. Jay J. Franklin Nehls is unquestionably the father of Dustin, so the concerns dealt with in Parham are inapposite, and, in all events, the requirements of the act have been met— an order of filiation was entered. The Parham line of cases is not on point.

D

The majority contends that, “[n]owhere in the statute is a distinction made between children bom in wedlock and children bom out of wedlock.”23 We acknowledge that the act does not in terms draw a line between illegitimate and legitimate children. That line is drawn, rather, in the first part of the majority’s opinion, where it holds, as a matter of statutory construction, that Dustin Nehls and those similarly situated, whose parents never marry, may not, during the *210lifetime of the father, be the subject of a grandparent’s petition for visitation.24

That line, drawn by the majority, is drawn solely on the basis of the marital status of the parents of the grandchild.25 The line so drawn solely burdens children whose parents have not, before or after the child’s birth, legally solemnized their union.

While this line is not quite the same as the line drawn under earlier definitions of illegitimacy (where the child’s status turned solely on the marital status of the parents at the child’s birth), both parental groups are the same for equal protection analysis: As *211a result of state action, a child whose parents are not married — either at the time of birth or thereafter — is treated differently than a child whose parents have married.

Inheritance laws were often struck down as unconstitutional because they deprived a child who was bom to unmarried parents the right to inherit, even though the child could be legitimated by, e.g., the subsequent marriage of the parents.

In Trimble v Gordon, 430 US 762, 774; 97 S Ct 1459; 52 L Ed 2d 31 (1977), the Court held:

If the decedent had written a will devising property to his illegitimate child, the case no longer would involve intestate succession law at all. Similarly, if the decedent had legitimated the child by marrying the child’s mother or by complying with the requirements of some other method of legitimation, the case no longer would involve discrimination against illegitimates. Hard questions cannot be avoided by a hypothetical reshuffling of the facts. If Sherman Gordon [the putative father in Trimble] had devised his estate to Deta Mona this case would not be here. Similarly, in Reed v Reed, 404 US 71 [92 S Ct 251; 30 L Ed 2d 225] (1971), if the decedent had left a will naming an executor, the problem of the statutory preference for male administrators of estates would not have been presented. The opinion in Reed gives no indication that this available alternative had any constitutional significance. We think it has none in this case. [Emphasis added.]

Because the majority’s only example of how this statutory provision, as misconstrued by it, does not exclude illegitimate children, involves the same legitimization of the grandchild found irrelevant in Trim-ble, thereby excluding every illegitimate child whose parents never marry from the protection of § 2(a) of the grandparent visitation statute, the classification is *212based on the legitimacy of the child, and needs to be evaluated under heightened scrutiny.

The majority apparently believes that, because it construes the “focus” of the act to be on the relationship of the grandparents to their children, rather than on the relationship of the grandchild to his parents, the classification’s actual unconstitutional effect on illegitimates is somehow dissipated. The relevant constitutional inquiry, however, is not on the “focus” of the statutory language, but whether the act creates an invidious classification based on the legitimacy of the grandchild. Because the majority’s construction of the grandparent visitation statute does so classify, it is subject to heightened scrutiny and, once analyzed under that framework, unconstitutional. Neither “benign” statutory language nor elaborate characterization removes the taint of an unconstitutional classification.

The majority’s effort to distinguish this case, from Trimble v Gordon, underscores why constitutional law ignores superficial distinctions. The majority argues that the act discriminates on the basis of the marital status of the grandparents’ child (the parent), rather than the marital status of the parents of the grandchild (the parent again).26 Because it is precisely this marital status that determines whether the grandchild is legitimate or illegitimate, however it is described, the majority’s distinction is one without a difference. The result is the same: illegitimate children whose parents never marry will never be the subject of a grandparent petition for visitation while both parents are alive, unlike legitimate children. A *213court cannot properly blind itself to the actual result of a statutory classification on the basis that the “focus” of the words employed is not on the classification it produces.

E

Illegitimacy classifications are subject to heightened scrutiny because the United States Supreme Court has determined that it is not appropriate to penalize a child on the basis of the marital status of his parents, over which the child has no control. Those concerns are present here: Dustin and his grandparents are being deprived of the benefit of a best-interests hearing regarding grandparent visitation simply because his parents never married, over which he had no control. State-sanctioned deprivation of a statutory benefit on such a basis cannot be permitted absent a substantial relationship to an important governmental interest.27

Under the majority’s construction of the grandparent visitation statute, a line is drawn between children whose parents have divorced or separated sometime during the child’s lifetime and those whose parents never married but an order of filiation was entered.

The majority avoids discussing the propriety of drawing the line where it announces it shall be drawn by focusing on the rights of grandparents, rather than those of grandchildren. While only grandparents are given a right to petition for visitation, § 7b in particular and the Child Custody Act as a whole, is written *214for the benefit of children, including children who are grandchildren. The grandparents are given the right to petition for visitation because no two year old will hire a lawyer to vindicate his interests in visiting with his grandparents.

The image of such a grandchild-initiated lawsuit strains credulity. Moreover, the grandchild would not have standing under § 2. The grandparents are given the right to petition because they have the incentive to seek visitation, but grandparents will only succeed if the visitation is in the child’s best interests. If the child would be harmed by grandparent visitation, no scenario envisionable allows a court to order visitation. The grandparents serve as legal surrogates for the grandchild’s interests. A young child may not be deprived of that to which he is entitled simply because an adult is authorized to advocate and vindicate the child’s best interests.28

*215The Legislature has presumed that in certain situations parental control will best protect the rights of the child, while in other instances state intervention is required. When communication with grandparents might be unreasonably cut off, the grandchild is usually in no position to take action. The grandparents are, so the act gives them the right to vindicate the grandchild’s interest in having communication with the child’s extended family.

F

The majority claims that there is an insufficient, “incidental effect” on grandchildren to warrant heightened scrutiny analysis. Again, it is the act that forces the inquiry into an analysis of the effect on grandchildren. That effect cannot be seen as merely incidental if the grandchild is being wrongfully denied communication with his grandparents.

The majority cites Califano v Boles, 443 US 282, 285; 99 S Ct 2767; 61 L Ed 2d 541 (1979), for the proposition that incidental effects on illegitimate children are insufficient to require heightened scrutiny.29 In that case, a woman had been denied “mother’s insurance benefits” because she was not divorced or widowed. The small effect that providing such benefits to the mother would have on the child prompted the Court to find any benefit to the child was limited and speculative. The Court observed that the Social Security Administration had not denied benefits to the illegitimate child.30 Thus, the child was protected even though the mother was not.

*216Califano never reached the issue whether denying benefits to an illegitimate child would deny equal protection, a situation much closer to the facts in this case, because the Social Security Administration was directly helping the child.

No important governmental interest is advanced by denying illegitimate children the right to have their grandparents petition for custody. This not only fails heightened scrutiny, but, as the Court of Appeals noted, it fails rational basis scrutiny. “There appears to be no conceivable set of facts demonstrating that the legislative judgment reflected in the classification is rationally related to any legitimate governmental interest. We can envision no well-founded reason to treat the grandparents of children bom out of wedlock differently if paternity is established.”31

G

The majority, in finding a rational basis for the act, as it constmes it, asserts that the Legislature “might have determined that unlimited resort to judicially enforced grandparent visitation might infringe on a parent’s fundamental right to raise a child,” or that, for other reasons, the Legislature did not desire broad and expansive jurisdiction.32 This general statement is irrelevant to the classification at hand: Are illegitimate children whose parents have sought and received an order of filiation any different, for pur*217poses of the grandparent visitation statute, than legitimate children whose parents have divorced or legally separated? There is no reason to distinguish the two cases, regardless of whether rational basis or heightened scrutiny review is employed.

The majority finds justification for a general policy of limiting visitation petitions, but this is too high a level of generality. The critical inquiry, for equal protection analysis, concerns the specific line drawn, not the general statutory framework. Under the correct analysis, the grandparent visitation statute, as construed by the majority, deprives Dustin Nehls and the Nehls grandparents and those similarly situated equal protection of the law.

The majority’s other attempts at finding a rational basis rely on stereotypes of unwed parents. Even rational basis requires some analysis, particularly where illegitimate children are involved.33 The majority forgoes analysis by relying on uninformed stereotypes and conjecture. The lengths to which the majority has gone to justify its construction of the statute demonstrates the weakness of its conclusions.

IV

We would affirm the judgment of the Court of Appeals and remand this case to the circuit court for a hearing concerning whether visitation with his grandparents is in Dustin’s best interests.

Cavanagh, J., concurred with Levin, J.

While Gina Frame’s reply brief in this Court contains an affidavit denying these allegations, the trial court granted her motion for summary disposition. We therefore must treat as true all well-pleaded allegations in the grandparent’s petition for visitation. Cf. Radtke v Everett, 442 Mich 368, 373; 501 NW2d 155 (1993).

208 Mich App 412, 415; 528 NW2d 773 (1995).

208 Mich App 416.

Section 7b provides:

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. Adoption of the child by a stepparent under [MCL 710.21 to 710.70; MSA 27.3178(555.21) to 27.3178(555.70)] does not terminate the right of a parent of the deceased person to commence an action for visitation.

(2) As used in this section, “child custody dispute” includes a proceeding in which any of the following occurs:

(a) The marriage of the child’s parents is declared invalid or is dissolved by the court, or a court enters a decree of legal separation with regard to the marriage.

(b) Legal custody of the child is given to a party other than the child’s parent, or the child is placed outside of and does not reside in the home of a parent, excluding any child who has been placed for adoption with other than a stepparent, or whose adoption by other than a stepparent has been legally finalized.

(3) A grandparent seeking a grandchild visitation order may commence an action for grandchild visitation, by complaint or complaint and motion for an order to show cause, in the circuit court in the county in which the grandchild resides. If a child custody dispute is pending, the order shall be sought by motion for an order to show cause. The complaint or motion shall be accompanied by an affidavit setting forth facts supporting the requested order. The grandparent shall give notice of the filing to each party who has legal custody of the grandchild. A party having legal custody may file an opposing affidavit. A hearing shall be held by the court on its own motion or if a party so requests. At the hearing, parties submitting affidavits shall be allowed an opportunity to be heard. At the conclusion of the hearing, if the court finds that it is in the best interests of the child to enter a grandchild visitation order, the court shall enter an order providing for reasonable visitation of the child by the grandparent by general or specific terms and conditions. If a hearing is not held, the court shall enter a grandchild visitation order only upon a finding that visitation is in the best interests of the child. A grandchild visitation order shall not be entered for the parents of a putative father unless the father *195has acknowledged paternity in writing, has been adjudicated to be the father by a court of competent jurisdiction, or has contributed regularly to the support of the child or children. The court shall make a record of the reasons for a denial of a requested grandchild visitation order. [MCL 722.27b; MSA 25.312(7b) (emphasis added).]

Id.

Statutes should be construed to avoid constitutional difficulties if the language of the statute does not compel only one reading. See Evans Products Co v State Bd of Escheats, 307 Mich 506, 533-535; 12 NW2d 448 (1943). “In cases of [constitutional] doubt, every possible presumption, not clearly inconsistent with the language and the subject matter, is to be made in favor of the constitutionality of the act.” Sears v Cottrell, 5 Mich 250, 259 (1858).

While this Court may not rewrite a statute, it may construe the language in a more or less restrictive manner to avoid constitutional questions. Cf. Erznoznik v City of Jacksonville, 422 US 205, 216; 95 S Ct 2268; 45 L Ed 2d 125 (1975), which discusses similar principles in constitutional challenges to the facial validity of a statute under the overbreadth doctrine of the First Amendment.

Ante at 178.

Id. at 177.

MCL 722.26(1); MSA 25.312(6)(1).

Standing should not, we agree, be liberally construed to allow a court to always reach the question whether visitation is in the child’s best interests, but rather it should be liberally construed, pursuant to the statutory mandate, to ensure the best interests of the child are given the paramount importance intended in the law.

*198Construing the grandparent visitation statute consistently with this mandate does not mean all grandparents have standing. It does mean that this Court should undertake a substantive analysis of the standing provisions in the act to ensure a construction that is consistent with the act’s intent. The majority’s decision that standing is a “threshold” determination, to be made without consideration of the provisions of the Child Custody Act calling for liberal construction, “disregardfs] the intent of the Legislature,” ante at 180, n 8, expressed without equivocation in the words of the act.

In Olepa v Olepa, 151 Mich App 690, 697; 391 NW2d 446 (1986), the Court said, “We will not construe the grandparent visitation provisions of the act so strictly that the object of the statute is destroyed”; “[apparently, the Legislature has decided that a grandparent should be allowed to seek visitation when a grandchild is officially no longer subject to the continual and uninterrupted custody of the parent who is the grandparent’s child.” Id. at 697-698.

Ante at 177, quoting House Legislative Analysis, SB 439 and 440, November 18, 1982.

These terms have been defined and differentiated in part as follows: “Two units are different etically when instrumental measurements can show them to be so. Units are different emically only when they elicit different responses from people acting within the system.”

See Pike, Language in Relation to a Unified Theory of the Structure of Human Behavior, 2d rev ed (The Hague: Mouton & Company, 1967), p 38.

Ante at 180, n 8.

At the conclusion of the hearing, if the court finds that it is in the best interests of the child to enter a grandchild visitation order, the court shall enter an order providing for reasonable visitation of the child by the grandparent by general or specific terms and conations. [MCL 722.27b(3); MSA 25.312(7b)(3).]

*200Contrary to the majority’s assertion that we are presenting a “thinly disguised position that grandparent visitation should always be awarded to grandparents because it is always in the best interest of the grandchild,” ante at 182, n 12 (emphasis added), an objective reading of this dissent indicates that standing would be granted only to grandparents who are in the same position as those specifically authorized to petition for visitation under the statute.

Simply upholding a grandparent’s right to file a petition has no bearing on the task assigned to the trial court: to determine if the best interests of the child require that visitation be granted, or that it be denied. It is for the circuit court, consistent with the statutory definition of best interests of the child, to determine where on the continuum any particular visitation request should fall.

The majority’s claim that this opinion attempts to deceive the reader with respect to its true agenda is without basis and reflective of the majority’s inability to deal with this issue in its proper legal context.

The majority asserts that this citation is inappropriate because Indiana’s statute does not distinguish between married and unmarried parents. Ante at 190, n 23. We agree that the Indiana statute does not so distinguish, and this may explain why Indiana employed rational basis review and Michigan should employ heightened scrutiny. Nonetheless, the Indiana court’s statement of the policy reasons for enacting a grandparent visitation statute are equally applicable to Michigan’s grandparent visitation statute.

This dissent does not claim that “any grandparent ‘squeezed out’ ... by the failure of the father or mother to grant visitation could claim that a functional divorce has occurred, separating him from the child . . . .” Ante at 180, n 8 (emphasis added).

Only because an order of filiation was entered that grants primary custody to the mother and limited visitation to the father is this case cognizable under the grandparent visitation statute.

If the grandchild’s parents are still married and refuse to allow one or both sets of grandparents visitation, the statute provides no recourse. Similarly, before the entry of the order of filiation the grandparents here may have had no claim to seek visitation rights.

The majority sets up a straw man and thereby fails to acknowledge that, in this case, there is no substantive difference, for purposes of the grandparent visitation statute, between divorce or legal separation proceedings and an order of filiation. This dissent would not provide all grandparents a judicial forum to petition for visitation; only those grandparents in the circumstances described in the statute envisioned by the Legislature and parallel circumstances would be entitled to petition for visitation.

The majority also contends, “The fact that there are many situations in which the parents of an illegitimate child have never lived together as a family, despite an order of filiation, is one illustration of the obvious: an order of filiation is not the functional equivalent of a divorce.” Id. Again, the majority misunderstands. The discussion of “traditional family settings” is not meant to limit the instances when a grandparent might seek visitation. It was simply to help explain the evils the Legislature was seeking to address in providing for grandparent visitation.

If the same problem of grandparent exclusion due to acrimony between the parents exists, regardless of whether the parents had previously lived together, the statute should be read to cover such a situation. The inquiry should not be narrowly focused on the nature of the parents’ relations before the entry of the order of filiation, but rather on the more complex task of evaluating the nature of the relationships and whether the grandparents are at risk of losing communication with the grandchild, not because the parents choose to exclude the grandparents on the basis of a joint decision of what is in the child’s best interests, but because the custodial parent refuses to allow visitation because of reasons unrelated to the appropriateness of visitation or the child’s best interests.

Nonetheless, even if this Court limited grandparent claims to those where the parents had something resembling a “traditional family setting,” an inquiry that courts are able to make, Dustin’s parents would probably *204qualify. They lived together with the child until shortly before Gina Frame sought the order of filiation.

Ante at 179-180.

The proposed amendment included provisions to allow a visitation petition “if the grandparent has provided an established custodial environment for the grandchild ... at any time during the life of the grandchild”; “if a parent of a grandchild has withheld visitation opportunities with the child from a grandparent to retaliate against the grandparent for reporting child abuse or neglect to a governmental authority where the grandparent has reasonable cause to suspect child abuse or neglect”; and “if a parent of the grandchild is living separate and away from the other parent and grandchild for more than 1 year.” SB 316.

2A Singer, Sutherland Statutory Construction (5th ed), § 48.18, p 369 (emphasis added).

Ante at 181-182.

Ante at 176, n 3.

486 US 461.

391 US 71.

Ante at 185.

The majority argues that this result is unavoidable given the language of the statute. The majority refuses, however, to give full effect to the Child Custody Act’s “liberal construction and application” requirement, or to read the statute in pari materia with subsection 3.

The reason advanced by the majority for deciding appellee satisfied none of the six ways of establishing standing delineated on page 181 of the majority opinion is that Dustin’s parents never married. Despite the majority’s strained attempts to find an example of an illegitimate child who qualifies under § 2(a), the majority can only fathom one instance: where an illegitimate child’s parents later marry.

As the United States Supreme Court has held, this is an example that effectively only allows illegitimate children the protection of the statute if they have been legitimated, continuing to burden illegitimate children unconstitutionally absent a justification that passes heightened scrutiny. Trimble v Gordon, 430 US 762; 97 S Ct 1459; 52 L Ed 2d 31 (1977), and text accompanying n 22. However the majority categorizes it, the line it draws is based on the parents’ marital status, over which Dustin has no control. The majority punishes him for his parents’ decision not to marry.

The majority claims this dissent “improperly focuses solely on § 2(a) . . . .” Ante at 188, n 19. As the parties have conceded, however, and the majority recognizes as well, § 7b(2)(a) is the only prong of the grandparent visitation statute that is relevant in this case. We decline to address the other sections because they have no bearing on the issues. It does not matter if § 7b(2)(b) or some other portion of the grandparent visitation statute passes constitutional muster when what has been challenged is § 7b(2)(a).

The majority recognizes that this portion of the statute “concededly uses the parents’ marital status as a means of separating those grandparents who may seek visitation and those who may not.” Id.

E.g., ante at 189, n 22.

See Clark v Jeter, supra at 461, and Dep’t of Civil Rights ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 191; 387 NW2d 821 (1986).

In Levy v Louisiana, the United States Supreme Court struck down a Louisiana law that prohibited illegitimate children from suing for the wrongful death of their mother. The Court did not regard it as significant that the lawsuit was brought on the illegitimate children’s behalf by an adult.

The majority finds that grandparents do not serve as a legal surrogate to protect the grandchild’s interests (ante at 182, n 12), yet it offers no other explanation for a statute that grants grandparents the right to petition in some circumstances, but prohibits them from succeeding unless it is in the grandchild's best interests.

The error of the majority’s conclusion is highlighted by its effect if adopted in analogous areas of law. Shareholder derivative actions are brought “to enforce the rights of the corporation against its directors and officers.” Eston v Argus, Inc, 328 Mich 554, 556; 44 NW2d 154 (1950). If the corporation is not injured, the action cannot be sustained, even though the shareholder brings the action to protect his own interests. If the majority’s analysis was taken seriously, courts would deny that the corporation is the real party in interest simply because the law, recognizing the impossibility of encouraging a corrupt board of directors or officers to bring suit against themselves, grants the shareholder the right to sue.

Ante at 189.

The Court wrote:

*216Thus, the focus of these benefits [mother’s insurance benefits] is on the economic dilemma of the surviving spouse or former spouse; the child’s needs as such are addressed through the separate child’s insurance benefits. [Califano at 294.]

208 Mich App 416.

Ante at 190-191.

See text accompanying n 22.