Presumptive Joint Custody Legislation
HB 4778 of 2011
Writing as Vice President and member of the Legislative Committee of DADS & MOMS PAC, Phillip Holman prepared and submitted the draft of a proposed Bill which is set forth below. The Bill was introduced with 19 sponsors and referred to the House Judiciary Committee. House Bill 4778 is virtually identical to Mr. Holman’s proposal and can be viewed at:
Several provisions are designed to safeguard against the judicial tendency to limit application of joint custody statutes. The Bill contains a presumption of joint custody, which is defined as substantially equal periods of time with each parent. It requires that joint custody be awarded unless one parent is found by clear and convincing evidence to be unfit, unable or unwilling to care for the child.
One provision of the Bill is truly unique and has not been introduce by any other state legislature. It provides that a parent may not be deemed unfit unless the parent’s actions are so egregious that his or her parental rights could be terminated. This is certain to be controversial because it is an extremely rigorous standard and few if any individuals seeking joint custody would be deemed so unfit that their parental rights could be terminated. Such cases are generally limited to child abuse, neglect and abandonment.
Mr. Holman argues that this is the appropriate standard and asserts that sadly we fail to recognize that awarding sole custody of a child to one parent essentially terminates the other parent’s parental rights. The traditional parenting time of alternate weekends and one evening every other week, amounts to only four overnights per month. Such an individual is not being treated as a parent and much of his parental rights have indeed been terminated. It is ironic that a loving involved father facing divorce is far more likely to have his parental rights terminated (by an award of sole custody to the child’s mother) than a father who is convicted of child abuse.
There appears to be substantial support for this legislation which would have an enormous impact on custody disputes in Michigan. This Bill would minimize the adverse impact of divorce and birth outside of marriage for Michigan’s children. The Family Law Section of the State Bar and the Friend of the Court will undoubtedly oppose it, as they have opposed all “father friendly” legislation in the past. However, this year we may have enough support to get it passed and enacted into law.
The following was submitted by Phillip Holman as a proposed Bill which is a mark up showing the changes from the current statute and from a prior joint custody Bill submitted by DADS and MOMS PAC.
HOUSE BILL No. ____
______, 2011, Introduced by Reps. __________________________________________________and referred to the Committee on ________.
A bill to amend 1970 PA 91, entitled “Child custody act of 1970,”by amending section 6a (MCL 722.26a), as added by 1980 PA 434.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 6a.(1) IN A CUSTODY OR PARENTING TIME DISPUTE BETWEEN PARENTS, THE COURT SHALL ORDER JOINT CUSTODY UNLESS THE COURT DETERMINES BY CLEAR AND CONVINCING EVIDENCE THAT A PARENT IS UNFIT, UNWILLING, OR UNABLE TO CARE FOR THE CHILD. A PARENT MAY ONLY BE DEEMED UNFIT UNDER THIS SECTION IF SUCH PARENT’S PARENTAL RIGHTS ARE SUBJECT TO TERMINATION UNDER MCL 712A.19b (3).
(1) In A custody DISPUTE disputes between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody, and THE COURT shall state on the record the reasons for FAILING TO AWARD JOINT CUSTODY. granting or denying a request. In other cases, joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
(a) The factors enumerated in section 3.
(b) Whether the parents will be able to cooperate MAINTAIN THE CHILD’S SCHOOL SCHEDULE and generally agree concerning important decisions affecting the welfare of the child.
(2) If the parents agree on joint IN WRITING TO A custody ARRANGEMENT, the court shall award joint GRANT THAT custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child ARRANGEMENT UNLESS ONE PARENT IS FOUND BY CLEAR AND CONVINCING EVIDENCE TO BE UNFIT.
(3) If the court awards joint custody, the court may SHALL include in its award a statement regarding when the child shall reside RESIDES with each parent , or may AND SHALL provide that physical custody be IS shared by the parents in a manner to assure the child continuing contact with both parents FOR SPECIFIC AND SUBSTANTIALLY EQUAL PERIODS OF TIME.
(4) During the time a child resides with a parent, that
parent shall decide all routine matters concerning the child.
(5) If there is a dispute regarding residency, the court
shall state the basis for a residency award on the record or in writing.
(6) Joint custody shall DOES not eliminate the responsibility for child support. Each parent shall be IS responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
(7) As used in this section, “joint custody” means an
order of the court in which
1 or both of the following is ARE
(a) That the child
shall reside RESIDES alternately for
specific AND SUBSTANTIALLY EQUAL periods OF TIME with each
of the parents PARENT.
(b) That the parents shall share decision-making authority as to ALL OF the important decisions affecting the welfare of the child.