Editor’s Note: The following article is about House Bill 4141, which was introduced during the 2015-2016 legislative session and was not passed by lawmakers. A proposal similar to House Bill 4141 — House Bill 4691 — was introduced in May 2017. House Bill 4691 is currently under consideration by state lawmakers. Stay with the Sinas Dramis Family Law Division Blog for important developments on House Bill 4691.
There is a bill that was introduced earlier this year that’s causing a stir and a great deal of concern amongst Michigan family law attorneys and judges alike: HB 4141. The proposed bill has been referred to the House Committee on Families, Children, and Seniors, and hearings might take place soon. While the goal of the legislation is to promote equity in child custody and parenting time matters, it may ultimately put children at risk.
Michigan House Bill 4141, first and foremost, would provide for a mandate of joint custody if there is a custody dispute that arises between parents, unless the family law judge “determines by clear and convincing evidence that a parent is unfit, unwilling, or unable to care for the child.” HB 4141 further provides that parental unfitness only arises if that parent’s parental rights are subject to termination due to neglect and/or abuse. This proposed legislation also overhauls the way in which a court awards parents parenting time with their children – the bill states that the parents shall have “substantially equal periods of time.”
While on its face, this type of legislation appears to be well-intentioned in that it seeks to give equal custody rights and parenting time to parents raising a child, HB 4141 is not very practical, and in fact, when analyzed closely, is unworkable in its current form.
How Parenting Time and Child Custody Decisions are Made in Michigan
In making determinations about child custody and parenting time issues, family law courts in Michigan are supposed to consider the “Best Interest of the Child Factors” to guide their decision. While not dispositive, they provide a checklist of sorts for judges to go through as they determine the arrangement that will most benefit the children, considering many aspects of a child’s life including the child’s physical, social, and mental health, safety, and education.
Michigan HB 4141 is unclear as to how those factors should be considered if it were to become law. The beginning of the bill mentions that “Subject to the presumption of joint custody under Section 6A, if a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control.” Does this mean there is a presumption of joint custody unless the results of the best interest analysis dictate a different outcome?
If that wasn’t confusing enough, as mentioned above, HB 4141 also states as follows:
“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 determined to be unfit under this section if the parent’s parental rights are subject to termination under Section 19B of Chapter XIIA of the Probate Code of 1939, 1939 PA 288, MCL 712A.19B [for abuse and/or neglect].”
Notice that there is no mention of the Best Interest of the Child Factors. In addition, does this mandate of joint custody and substantially equal periods of parenting time apply to initial custody decisions and to requests for a modification – the bill simply provides “[i]n a custody or parenting time dispute.” Would a “dispute” include something as routine and relatively minor as the filing of a parenting time complaint?
Michigan HB 4141, while well-intentioned, is impractical
In addition to the confusion as to how (or if) the best interest factors will still play a role in child custody and parenting time determinations, as we mentioned above, the bill does not seem to be practical. There are a number of questions that come to mind:
- In calling for “substantially equal” parenting time and joint custody, does it take into account how close or far apart the parents live?
- How is “substantially equal” even defined?
- What happens if a parent lives out of state, or in another country?
- Does it factor in parents’ work schedules, especially if a child needs to be driven back and forth between households?
- If parenting time must be “substantially equal” between parents, how does this impact where the child goes to school, and whether or not that child can participate in extracurricular activities?
- Does this consider the age of the children? If there is a newborn, how will the mandate for “substantially equal” parenting time impact the baby is cared for (i.e., nursing needs, the formation of bonds)?
While close inspection of Michigan HB 4141 shows that raises more concerns than it addresses, what is most troubling about this bill is that it might allow children to be exposed to a parent that has been abusive or neglectful, but has either not been subject to investigation by Child Protective Services, or if they were, whatever was happening was not enough to warrant the loss of parental rights. Is it fair (or right) to put children in an unsafe environment, all in the interest of making sure the parents get to spend “substantially equal” time with their children?