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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Thursday, June 8, 2017

Child Custody and Parenting Sea Change

For some time now, members of Michigan's House of Representatives have proposed a sea change to the Child Custody Act. Last week, Representative Jim Runestad [R-White Lake] re-introduced a modified version of his seemingly perennial child custody and parenting bill.

The attempt, this time around, is known as HB 4691 and seeks to change the spirit as well as the label of Michigan's child custody law. Runestad's bill proposes a new title to the act: the shared parenting act.

In the spirit of this truly sea changing proposed legislation, Runestad seeks to introduce a presumption into the custody act: spending equal time with each parent is in the best interests of the child. A parent seeking to overcome this presumption would need to introduce "clear and convincing" evidence that such a parenting arrangement is not in the child's best interest.

Sounds simple and reasonable enough. Yet, whenever this bill gets re-introduced each session, it is usually met with firm resistance from the organized family bar.

The Oakland County Bar Association, for example, has published the following statement in opposition to the predecessor bill to this term's attempt:

Mandatory equal physical custody would make the best interest of the child factors irrelevant and treat all families exactly the same.  It would require that both parents live in the same school district or travel distances for schooling, require the children to move frequently from house to house regardless of the child’s preference and allow any parent, including convicted felons, to demand equal parenting time. Requiring a standard of ‘unfitness’ to be found by ‘clear and convincing evidence’ directly contradicts nearly all other provisions of the Child Custody Act.  This bill again attempts to remedy a perceived problem which, in fact, does not exist.  The current custody statute(s) and subsequent case law clearly permits a court to determine when it is in the best interest of a child that joint custody, or equal parenting time, be ordered.
This bill focuses on the needs of the parent instead of the needs of the children. 
The opponents and proponents of the bill will likely be heard over the next few months while the bill is debated in the state house's judiciary committee. In recent hearings conducted in May, Wayne County Judge Richard Halloran, the current chair of the state bar's family law section, testified in opposition to the bill. Judge Halloran, like many other family court professionals, is concerned about the effect the new law will have on the ability to address the intersection of child custody and domestic violence.

Representative Runestad, however, is now the chair of the Judiciary Committee. Perhaps because of this, many family law professionals have the sense that the proposed legislation has traction this time around and could become the new custody and parenting law of the state at some point during this legislative session.

Details are always devilish. The bill also constructs a wholesale replacement of the 11 statutory custody factors -long-used by judges- with a new set of factors for the family court to consider. These new factors, according to the bill's sponsors, are designed to ensure a child's meaningful relationship with both parents.

Our good friend and appellate lawyer, Scott Bassett, a lawyer's lawyer if there ever was one, openly wonders on the state bar's family law listserve why the legislature would jettison nearly 75-years of appellate court custody jurisprudence that has developed and honed the child custody act. Darn good question if you were to ask us over here at the Law Blogger.

Some of our more jaded colleagues have stated to this blogger that the bill does nothing to eliminate custody battles; it simply changes the look of the battlefield. Also, opponents say, it puts the parent's litigation agenda over the child's genuine needs and interests.

We will monitor the bill's progress and let our readers know what happens next. Meanwhile, we invite you to post your comments on this hot family law topic. 

Post script: meetings scheduled for Thursday, June 15, were postponed yesterday.

Update: 06/21/2017 - Runestad's bill passed the judiciary committee -no surprise there- and proceeds to the plenary house for further discussion after the recess. 

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Blogger Unknown said...

HB 4691 is a marked departure and improvement from previous versions of shared parenting attempts in Michigan. Representatives of the Family Law Section reluctantly admitted as much in testimony last week before the House Judiciary Committee, saying the legislation largely addressed their concerns from previous years, although they were still opposed.

So, what's different now?

Whereas in previous versions, a parent could only be stripped of custody by proof of criminal abuse or neglect, this version leaves most of the concepts of the Best Interest Factors in place, and even beefs them up in certain areas. But, the legislation requires requires one parent to prove that a child is actually harmed by shared time with the other parent in order for them not to enjoy substantially equal parenting time.

The other significant change is that the old Established Custodial Environment standard, which was often used as a tool to strip custody from a working parent in favor of a stay at home parent, has been substantially diminished.

Shared Parenting advocates have become much more sophisticated in recent years after learning from the failures of the past. In the meantime, the legal community has provided woefully inadequate input and less than genuine commentary on the legal aspects of the bill both in private and in their legislative testimony, rendering the distinct possibility that they'll have virtually no substantive input on the most important legal reforms coming out of the legislature in decades.

June 10, 2017 at 7:33 PM 
Anonymous Anonymous said...

Changes need to occur in the Family Court System associated with the best interest of the child. Cases are often pushed through the courtroom like cattle. Ample time needs to be devoted to hearing high-conflict cases. When it takes longer to adopt a puppy from the dog pound than it does to decide the fate of a child, something is very wrong. This bill should not pass!

June 16, 2017 at 3:52 PM 

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