The Michigan Legislature is once again considering a joint custody requirement for divorced parents with children. House Bill 4691 would mandate that judges award joint custody and substantially equal parenting time, unless there is a preponderance of evidence of domestic violence.
In 2015, state lawmakers considered a similar joint custody requirement in House Bill 4141, but that measure never made it out of committee.
Among other things, House Bill 4691 would also:
- prohibit a parent from moving more than 80 miles away from the other parent.
- require a judge to give substantial weight to a child’s custody preference, if the child is age 16 or older.
Those who support the proposal assert that, due to same-sex marriages and more people having children out of wedlock, a joint custody requirement is needed to remove discretion from family law judges.
But similar to House Bill 4141, many people and organizations oppose the measure, including judges, family court workers, advocates against domestic violence, the State Bar of Michigan Family Law Section and the Michigan Poverty Law Program. They say the proposal presumes that one form of custody is best for all families, and that simply isn’t the case.
Opposition To A Joint Custody Requirement
When custody is disputed in a divorce, MCL 722.26a says the parents must be advised of a joint custody arrangement. The statute also requires that, if either parent requests an award of joint custody, the court must consider such an award.
Those who oppose House Bill 4691 argue that, if there is a joint custody requirement, it could make things logistically challenging for parents and children. For example, opponents assert that some parents may not be able to find a job due to a shared parenting time schedule and children may feel lost in the constant shuffle between two households. Some opponents also claim that child support could become a “bargaining chip” for the parent who doesn’t want to pay a higher amount.
When it comes to child support, the amount is based on the number of overnights the parent has with the child. House Bill 4691 would require that no parent have more than 200 overnights with their children in one year. According to those who don’t favor the bill, this would reduce the support obligation for one parent, which means a parent could get a lower support obligation and then decide not to exercise his or her equal parenting time.
In testimony prepared for the House Judiciary Committee, several judges asserted that House Bill 4691 puts the best interest of the child behind the interest of the parents. They also said the provision that a judge must give substantial weight to the preference of the child will force the child to publicly choose sides, and possibly inject the child into a contentious battle between the parents.
Joint Custody: Best Interest Factors Would Be Revised
Currently, when making determinations about child custody and parenting time, Michigan courts must consider the “best interest of the child factors.” Looking to each of these factors, which are set forth in MCL 722.23, the court must determine whether joint custody is in the child’s best interest and must state the reasons on the record for either granting or denying the request.
While the statutory best interest factors are not dispositive, they provide a “checklist” for judges, as they establish the arrangement that will be most beneficial to the child. In making this decision, judges can consider various aspects of a child’s life, including physical, social and mental health, as well as safety and education.
Note, however, that the court is not required to consider each best interest factor equally. Rather, the court is only required to take each factor into account. Depending on the individual case, some factors will be more relevant than others and will carry greater weight. Right now, family law judges are granted the discretion to weigh each factor as they see fit when making their custody determination.
House Bill 4691 would turn this current best factor analysis on its head. The proposal would revise many of the current best interest factors and completely eliminate certain other factors. The complete list of House Bill 4691’s proposed best interest factor changes can be found here.
House Bill 4691 passed the House Judiciary Committee on June 20, 2017. A vote on the bill is not expected in the full House until lawmakers return from summer recess.
Stay tuned to the Sinas Dramis Law Division Blog for further developments on this important piece of legislation. Meanwhile, if you have questions about House Bill 4691 or a domestic relations matter, contact our Michigan family lawyers today. Or call 866-758-0031.