Proposed House Bill would effectively allow one parent to veto the other parent’s decision to have a third party watch the child for a significant period of time
As attorneys who have handled issues associated with divorce and separation, especially when children are involved, a piece of legislation recently grabbed our attention: a recently proposed bill that would provide an interesting – and perhaps unwelcome – change to Michigan’s current law regarding parenting time and child custody. Michigan House Bill 4132 would provide a parent the opportunity to essentially veto another parent’s decision to leave their child(ren) in someone else’s care for a significant period of time, as opposed to allowing the other parent the chance to look after the child.
Specifically, the proposed bill states as follows:
“[T]he Court may consider . . . whether to award 1 or both of the parties the right of first refusal to provide child care for the child during the other parent’s normal parenting time, unless the need for child care is attributable to an emergency.”
If the right of first refusal is granted, the parent who currently has custody of the child but is unable to look after him or her (assuming there isn’t an emergency preventing that parent from caring for the child(ren)) would first have to offer the other parent the chance to look after the child. If that parent is unable to (or does not wish to) look after the child, the parent can then seek out a third party to look after the child. However, the Michigan best interest of the child factors also play a role in this determination; if the inclusion of the right of first refusal provision would not be in the child(ren)’s best interest, then it will not be ordered.
If the parents cannot come to an agreement regarding the right of first refusal and the court determines that the ability to exercise that right is in the best interest of the child(ren), then the court, in determining its provisions, has to include the following in its final order:
- The length and kind of child care requirements that will invoke the right of first refusal;
- Notification to the other parent and for the other parent’s response;
- Transportation requirements; and
- Any other action necessary to protect and promote the best interests of the child.
However, a parent’s right of first refusal will be terminated if that parent’s custody or parenting time rights are also terminated by the court.
This bill raises a number of concerns:
- Continued entanglement for/of the parties: In its current form, this proposed bill would force parties to interact and communicate a significant amount.
- Potential for harassment/control issues: Essentially providing a parent with veto power during the other parent’s parenting time could lead to harassment and the exercise of undue control over decisions made by the parent who has custody at the time.
- Lack of consistency in determining the child’s schedule: Another concern that comes to mind is the fact that the child(ren)’s schedule may become even more hectic. Having a more stable parenting time and custody schedule provides some peace of mind and stability to the child’s life.
While the overarching goal of the proposed bill – to allow parents to have the right to be more involved in a child’s life by given them additional input regarding who can watch the child in certain circumstances – is good, the potential for abuse of this right of first refusal, in addition to a number of other concerns, makes this idea problematic.