Proposed Michigan Shared Parenting Act, House Bill No. 4691
There has been a lot of talk regarding the proposed Michigan Shared Parenting Act [MSPA] which would amend the Child Custody Act of 1970. The average person does not know the current law, and what are the changes. This article will try to show what the law is now, and what the proposed changes would make the law to be.
LEGAL CUSTODY AND PHYSICAL CUSTODY
We currently have legal custody and physical custody. Legal custody is the ability of a parent to affect the decisions relating to the child. For example, whether the child is vaccinated, does online school, or gives permission for the child to go on a school field trip. Physical custody is where the child actually lives.
The term parenting time, many years ago was referred to as visitation time, means the actual time that a child spends with their parent.
CURRENT BEST INTEREST FACTORS VERSUS CHANGES ON BEST INTEREST FACTORS OF THE CHILD
It is now quite common for parents to have joint legal custody, with one parent having sole physical custody as the custodial parent and parenting time to the other parent as the non-custodial parent. Typically, the non-custodial parent receives parenting time to be every other weekend from Friday night to Sunday night, every other week with one evening for two to three hours, with half the winter school break, half the spring school break and half the summers to the non-custodial parent. The non-custodial parenting time is typically based on the Friend of the Court Handbook for the county in which the case if filed. The new law proposed by MSPA will assume in every case that both parents would have equal physical custody of the children with each parent having no more than 200 days a year with the children and joint legal custody. Unless the parents agree to something different. The parents are always free to create an agreement that differs from the law as long as the court approves their plan to be in the best interest of the child(ren).
To determine what is in the best interest of the child(ren), the law currently has 11 factors
"Best interests of the child" means the sum total of the following factors to be considered, evaluated, and determined by the court: (a) The love, affection, and other emotional ties existing between the parties involved and the child. (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (e) The permanence, as a family unit, of the existing or proposed custodial home or homes. (f) The moral fitness of the parties involved. (g) The mental and physical health of the parties involved. (h) The home, school, and community record of the child. (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent. (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
The proposed MSPA, also has multiple factors for the best interests. The primary difference with the proposed MSPA is that it includes the history of the parent’s past behavior. It also allows the court to look at whether or not the behavior of a parent extending beyond reasonable parenting practices materially compromises the stability of the home or the health, safety, or well being of the child. Additionally, the mental or physical condition of a parent that materially compromise the stability of the home or the health, safety or well-being of the child. A parent’s criminal activity or substance use which materially compromise the child is also considered. Materially compromised means diminished outcomes that exceed minor deviations and that would have a significant and profound impact on the well-being of the child.
CHANGE IN PRESUMPTIONS ON CUSTODY
The big change with the proposed MSPA is that certain presumptions are made before a custody case begins. If at the time the divorce is filed, parents live together, it is presumed that both parents have an established custodial environment for determining custody and parenting time. If the parents do NOT live together at the time a divorce or custody action is filed, each parent will be given 90 days to notify the court that they have the intention to preserve his or her established custodial environment. If proper notification is received by the court, the court shall presume that the parent has established custodial environment. Currently, wherever the child is living, that parent is granted the established custodial environment. If a parent moves out of the house to obtain a divorce and the children remain behind, the other parent has the custodial environment, and the parent moving out has lost their established custodial environment, and often, custody of their children.
The proposed MSPA, states that although both parents may start out with an established custodial environment, the other parent may prove by clear and convincing evidence that it is not in the child’s best interest for the other parent to maintain an established custodial environment.
The proposed MSPA also states that joint legal custody shall be granted to both parents unless the parents agree to something else, or one parent can prove by clear and convincing evidence that joint legal custody would compromise the child’s best interests.
The proposed MSPA states that if the parents have joint legal custody and they cannot agree or cooperate, the Court may do one of the following: 1. Refer the parents to appropriate services until they can cooperate. 2. Inform the parents that the Court may revoke joint legal custody if the child’s health, safety or well-being would likely be materially compromised by the parents’ inability to agree. 3. The Court can order that no changes may be made with regard to the child’s schooling or other important decisions until the parents agree, or agree to a decision making process or to designate another person to settle disputes.
CURRENT ISSUES IN CUSTODY DISPUTES
Currently on physical custody, a child’s preference may be taken into consideration, however, a child does not have a right to be heard until the age of 14. At the age of 14, the child’s preference carries no more weight than when they were five years old. The only requirement at the age of 14 is that they must be listened to, but that does not mean they get to choose where to live.
In child custody disputes, it is becoming more common for one parent to try to turn the child against the other parent. This is known as parental alienation. This is the process, and the result, of the psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent or other family members. Parental alienation is not in the Diagnostic and Statistical Manuel of Mental Disorders 5, [DSM-5] but it has been argued that it is already covered under DSM-5 under the diagnosis: "Parent-Child Relational Problem."
It is also common for parents to allege false allegations against the other parent in their court proceedings in an effort to gain the upper hand in a child custody dispute.
The proposed MSPA states that if an established custodial environment has been created by both parents, the Court shall order joint physical custody UNLESS the parents agree to something different or one parent demonstrates by clear and convincing evidence that: 1. The child has been exposed to domestic violence, 2. The child would likely be subjected to child abuse or neglect. 3. If the relationship between the child and a parent is materially harmed during the child’s time with the other parent due to actions that attempt to frustrate the relationship or alienate the child from the parent. 4. A parent has knowingly made false or misleading allegations regarding child abuse, child neglect, or domestic violence in a family court proceeding. 5. A child has a strong, genuine, and reasonable preference if the court considers the child to be of sufficient age and maturity to express a preference and that preference is not cause as a result of parental alienation. Predominant weight shall be given to a child’s preference after he or she turns 16 years of age.
Currently, child support is determined by the income of each parent, and then how many overnights each parent has with the child. The more overnights a parent has with the child, the less child support that the parent has to pay. Even if the parents have 50/50 overnights, if one parent makes more than the other, the higher earning parent will pay the lower earning parent child support.
The proposed MSPA states that if a parent who is responsible for paying child support would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may reduce child support payments for the benefit of the child.
Currently, if a military parent is deployed, the non-deployed parent has physical custody until the deployed parent returns, and then whatever the custody and parenting time arrangement was before the deployment automatically resumes.
Under the proposed MSPA, there is an additional element. If a military parent is deployed, in order to maintain the established custodial environment and stability of the child, the deploying parent may designate a third party who may exercise the deploying parent’s parenting time while that parent is away.
100 MILE RULE TO THE 40 MILE RULE
Currently, a custodial parent cannot change the legal residence of the child by more than 100 miles without permission from the court. The 100 miles is currently measured, “as the crow flies” or a straight line on a map from point A to point B. The proposed MSPA states that the child shall not be removed from the child’s legal residence OR school by more than 40 miles. The 40 miles is measured by a vehicle odometer.
Actual House Bill 4691:
ABOUT THE AUTHOR:
Donald J. Baranski received his Bachelor of Arts in Humanities Pre- Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University specializing in Applied Ethics and Value Theory. He then obtained his Doctorate in Law from Michigan State University School of Law.
Baranski has been a practicing law for 30 years in the State of Michigan. He has taught family law at Jackson College. He has taught Adoption Law and Procedure at Western Michigan Cooley Law School. He practices family law, including: adoptions, paternity, divorce, custody, parenting time, alimony, and child support. He is of counsel to the Law Firm of Casey D. Conklin, PLC, in Okemos, Michigan.