HOUSE BILL No. 4174

 

January 30, 2007, Introduced by Reps. Pearce, Rick Jones, Caul, Hildenbrand, Steil, Proos, Pastor, Brandenburg, Dean, LaJoy, Green and Sheen and referred to the Committee on Families and Children's Services.

 

     A bill to amend 1970 PA 91, entitled

 

"Child custody act of 1970,"

 

by amending sections 7a, 7b, and 11 (MCL 722.27a, 722.27b, and

 

722.31), section 7a as amended by 1996 PA 19, section 7b as amended

 

by 2006 PA 353, and section 11 as added by 2000 PA 422.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 7a. (1) Parenting time shall be granted in accordance

 

with the best interests of the child. It is presumed to be in the

 

best interests of a child for the child to have a strong

 

relationship with both of his or her parents. Except as otherwise

 

provided in this section, parenting time shall be granted to a

 

parent in a frequency, duration, and type reasonably calculated to

 

promote a strong relationship between the child and the parent

 


granted parenting time.

 

     (2) If the parents of a child agree on parenting time terms,

 

the court shall order the parenting time terms unless the court

 

determines on the record by clear and convincing evidence that the

 

parenting time terms are not in the best interests of the child.

 

     (3) A child has a right to parenting time with a parent unless

 

it is shown on the record by clear and convincing evidence that it

 

would endanger the child's physical, mental, or emotional health.

 

     (4) Notwithstanding other provisions of this act, if a

 

proceeding regarding parenting time involves a child who is

 

conceived as the result of acts for which 1 of the child's

 

biological parents is convicted of criminal sexual conduct as

 

provided in sections 520a to 520e and 520g of the Michigan penal

 

code, Act No. 328 of the Public Acts of 1931, being sections

 

750.520a to 750.520e and 750.520g of the Michigan Compiled Laws

 

1931 PA 328, MCL 750.520a to 750.520e and 750.520g, the court shall

 

not grant parenting time to the convicted biological parent. This

 

subsection does not apply to a conviction under section 520d(1)(a)

 

of Act No. 328 of the Public Acts of 1931, being section 750.520d

 

of the Michigan Compiled Laws the Michigan penal code, 1931 PA 328,

 

MCL 750.520d. This subsection does not apply if, after the date of

 

the conviction, the biological parents cohabit and establish a

 

mutual custodial environment for the child.

 

     (5) Notwithstanding other provisions of this act, if an

 

individual is convicted of criminal sexual conduct as provided in

 

sections 520a to 520e and 520g of Act No. 328 of the Public Acts of

 

1931 the Michigan penal code, 1931 PA 328, MCL 750.520a to 750.520e

 


and 750.520g, and the victim is the individual's child, the court

 

shall not grant parenting time with that child or a sibling of that

 

child to that individual, unless both the child's other parent and,

 

if the court considers the child or sibling to be of sufficient age

 

to express his or her desires, the child or sibling consent to the

 

parenting time.

 

     (6) The court may consider the following factors when

 

determining the frequency, duration, and type of parenting time to

 

be granted:

 

     (a) The existence of any special circumstances or needs of the

 

child.

 

     (b) Whether the child is a nursing child less than 6 months of

 

age, or less than 1 year of age if the child receives substantial

 

nutrition through nursing.

 

     (c) The reasonable likelihood of abuse or neglect of the child

 

during parenting time.

 

     (d) The reasonable likelihood of abuse of a parent resulting

 

from the exercise of parenting time.

 

     (e) The inconvenience to, and burdensome impact or effect on,

 

the child of traveling for purposes of parenting time.

 

     (f) Whether a parent can reasonably be expected to exercise

 

parenting time in accordance with the court order.

 

     (g) Whether a parent has frequently failed to exercise

 

reasonable parenting time.

 

     (h) The threatened or actual detention of the child with the

 

intent to retain or conceal the child from the other parent or from

 

a third person who has legal custody. A custodial parent's

 


temporary residence with the child in a domestic violence shelter

 

shall not be construed as evidence of the custodial parent's intent

 

to retain or conceal the child from the other parent.

 

     (i) Any other relevant factors.

 

     (7) Parenting time shall be granted in specific terms if

 

requested by either party at any time.

 

     (8) A parenting time order may contain any reasonable terms or

 

conditions that facilitate the orderly and meaningful exercise of

 

parenting time by a parent, including 1 or more of the following:

 

     (a) Division of the responsibility to transport the child.

 

     (b) Division of the cost of transporting the child.

 

     (c) Restrictions on the presence of third persons during

 

parenting time.

 

     (d) Requirements that the child be ready for parenting time at

 

a specific time.

 

     (e) Requirements that the parent arrive for parenting time and

 

return the child from parenting time at specific times.

 

     (f) Requirements that parenting time occur in the presence of

 

a third person or agency.

 

     (g) Requirements that a party post a bond to assure compliance

 

with a parenting time order.

 

     (h) Requirements of reasonable notice when parenting time will

 

not occur.

 

     (i) Any other reasonable condition determined to be

 

appropriate in the particular case.

 

     (9) During the time a child is with a parent to whom parenting

 

time has been awarded, that parent shall decide all routine matters

 


concerning the child.

 

     (10) Prior to entry of a temporary order, a parent may seek an

 

ex parte interim order concerning parenting time. If the court

 

enters an ex parte interim order concerning parenting time, the

 

party on whose motion the ex parte interim order is entered shall

 

have a true copy of the order served on the friend of the court and

 

the opposing party.

 

     (11) If the opposing party objects to the ex parte interim

 

order, he or she shall file with the clerk of the court within 14

 

days after receiving notice of the order a written objection to, or

 

a motion to modify or rescind, the ex parte interim order. The

 

opposing party shall have a true copy of the written objection or

 

motion served on the friend of the court and the party who obtained

 

the ex parte interim order.

 

     (12) If the opposing party files a written objection to the ex

 

parte interim order, the friend of the court shall attempt to

 

resolve the dispute within 14 days after receiving it. If the

 

matter cannot be resolved, the friend of the court shall provide

 

the opposing party with a form motion and order with written

 

instructions for their use in modifying or rescinding the ex parte

 

order without assistance of counsel. If the opposing party wishes

 

to proceed without assistance of counsel, the friend of the court

 

shall schedule a hearing with the court that shall be held within

 

21 days after the filing of the motion. If the opposing party files

 

a motion to modify or rescind the ex parte interim order and

 

requests a hearing, the court shall resolve the dispute within 28

 

days after the hearing is requested.

 


     (13) An ex parte interim order issued under this section shall

 

contain the following notice:

 

                               NOTICE:

 

     1. You may file a written objection to this order or a motion

 

to modify or rescind this order. You must file the written

 

objection or motion with the clerk of the court within 14 days

 

after you were served with this order. You must serve a true copy

 

of the objection or motion on the friend of the court and the party

 

who obtained the order.

 

     2. If you file a written objection, the friend of the court

 

must try to resolve the dispute. If the friend of the court cannot

 

resolve the dispute and if you wish to bring the matter before the

 

court without the assistance of counsel, the friend of the court

 

must provide you with form pleadings and written instructions and

 

must schedule a hearing with the court.

 

     (14) A parent may request electronic communication in addition

 

to parenting time under this section. If a parent requests

 

electronic communication under this section, the court may grant

 

that parent a reasonable amount of electronic communication while

 

the child is in the other parent's care if the court finds both of

 

the following:

 

     (a) The equipment for providing the type of electronic

 

communication requested and the service for utilizing that

 

equipment is available to both parents.

 

     (b) The electronic communication requested is in the best

 

interests of the child.

 

     (15) A court shall not use electronic communication as a

 


substitute for parenting time under this section.

 

     (16) The amount of electronic communication between a parent

 

and child shall not be used as a factor in the calculation of child

 

support.

 

     (17) If a parenting time order contains a requirement that

 

parenting time occur in the presence of a third person or agency,

 

any electronic communication granted under this section shall also

 

occur in the presence of a third person or agency.

 

     (18) As used in this section, "electronic communication" means

 

communication between a parent and his or her child by telephone,

 

electronic mail, instant messaging, video conferencing, webcam, or

 

any other electronic communication device.

 

     Sec. 7b. (1) A child's grandparent may seek a grandparenting

 

time or electronic communication order under 1 or more of the

 

following circumstances:

 

     (a) An action for divorce, separate maintenance, or annulment

 

involving the child's parents is pending before the court.

 

     (b) The child's parents are divorced, separated under a

 

judgment of separate maintenance, or have had their marriage

 

annulled.

 

     (c) The child's parent who is a child of the grandparents

 

grandparent is deceased.

 

     (d) The child's parents have never been married, they are not

 

residing in the same household, and paternity has been established

 

by the completion of an acknowledgment of parentage under the

 

acknowledgment of parentage act, 1996 PA 305, MCL 722.1001 to

 

722.1013, by an order of filiation entered under the paternity act,

 


1956 PA 205, MCL 722.711 to 722.730, or by a determination by a

 

court of competent jurisdiction that the individual is the father

 

of the child.

 

     (e) Except as otherwise provided in subsection (13), legal

 

custody of the child has been given to a person other than the

 

child's parent, or the child is placed outside of and does not

 

reside in the home of a parent.

 

     (f) In the year preceding the commencement of an action under

 

subsection (3) for grandparenting time, the grandparent provided an

 

established custodial environment for the child as described in

 

section 7, whether or not the grandparent had custody under a court

 

order.

 

     (2) A court shall not permit a parent of a father who has

 

never been married to the child's mother to seek an order for

 

grandparenting time or electronic communication under this section

 

unless the father has completed an acknowledgment of parentage

 

under the acknowledgment of parentage act, 1996 PA 305, MCL

 

722.1001 to 722.1013, an order of filiation has been entered under

 

the paternity act, 1956 PA 205, MCL 722.711 to 722.730, or the

 

father has been determined to be the father by a court of competent

 

jurisdiction. The court shall not permit the parent of a putative

 

father to seek an order for grandparenting time or electronic

 

communication unless the putative father has provided substantial

 

and regular support or care in accordance with the putative

 

father's ability to provide the support or care.

 

     (3) A grandparent seeking a grandparenting time or electronic

 

communication order shall commence an action for grandparenting

 


time, as follows:

 

     (a) If the circuit court has continuing jurisdiction over the

 

child, the child's grandparent shall seek a grandparenting time or

 

electronic communication order by filing a motion with the circuit

 

court in the county where the court has continuing jurisdiction.

 

     (b) If the circuit court does not have continuing jurisdiction

 

over the child, the child's grandparent shall seek a grandparenting

 

time or electronic communication order by filing a complaint in the

 

circuit court for the county where the child resides.

 

     (4) All of the following apply to an action for grandparenting

 

time under subsection (3):

 

     (a) The complaint or motion for grandparenting time or

 

electronic communication filed under subsection (3) shall be

 

accompanied by an affidavit setting forth facts supporting the

 

requested order. The grandparent shall give notice of the filing to

 

each person who has legal custody of, or an order for parenting

 

time with, the child. A party having legal custody of the child may

 

file an opposing affidavit. A hearing shall be held by the court on

 

its own motion or if a party requests a hearing. At the hearing,

 

parties submitting affidavits shall be allowed an opportunity to be

 

heard.

 

     (b) In order to give deference to the decisions of fit

 

parents, it is presumed in a proceeding under this subsection that

 

a fit parent's decision to deny grandparenting time or electronic

 

communication does not create a substantial risk of harm to the

 

child's mental, physical, or emotional health. To rebut the

 

presumption created in this subdivision, a grandparent filing a

 


complaint or motion under this section must prove by a

 

preponderance of the evidence that the parent's decision to deny

 

grandparenting time or electronic communication creates a

 

substantial risk of harm to the child's mental, physical, or

 

emotional health. If the grandparent does not overcome the

 

presumption, the court shall dismiss the complaint or deny the

 

motion.

 

     (c) If a court of appellate jurisdiction determines in a final

 

and nonappealable judgment that the burden of proof described in

 

subdivision (b) is unconstitutional, a grandparent filing a

 

complaint or motion under this section must prove by clear and

 

convincing evidence that the parent's decision to deny

 

grandparenting time or electronic communication creates a

 

substantial risk of harm to the child's mental, physical, or

 

emotional health to rebut the presumption created in subdivision

 

(b).

 

     (5) If 2 fit parents sign an affidavit stating that they both

 

oppose an order for grandparenting time or electronic

 

communication, the court shall dismiss a complaint or motion

 

seeking an order for grandparenting time or electronic

 

communication filed under subsection (3). This subsection does not

 

apply if 1 of the fit parents is a stepparent who adopted a child

 

under the Michigan adoption code, chapter X of the probate code of

 

1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandparent

 

seeking the order is the natural or adoptive parent of a parent of

 

the child who is deceased or whose parental rights have been

 

terminated.

 


     (6) If the court finds that a grandparent has met the standard

 

for rebutting the presumption described in subsection (4), the

 

court shall consider whether it is in the best interests of the

 

child to enter an order for grandparenting time or electronic

 

communication. If the court finds by a preponderance of the

 

evidence that it is in the best interests of the child to enter a

 

grandparenting time or electronic communication order, the court

 

shall enter an order providing for reasonable grandparenting time

 

of or electronic communication with the child by the grandparent by

 

general or specific terms and conditions. In determining the best

 

interests of the child under this subsection, the court shall

 

consider all of the following:

 

     (a) The love, affection, and other emotional ties existing

 

between the grandparent and the child.

 

     (b) The length and quality of the prior relationship between

 

the child and the grandparent, the role performed by the

 

grandparent, and the existing emotional ties of the child to the

 

grandparent.

 

     (c) The grandparent's moral fitness.

 

     (d) The grandparent's mental and physical health.

 

     (e) The child's reasonable preference, if the court considers

 

the child to be of sufficient age to express a preference.

 

     (f) The effect on the child of hostility between the

 

grandparent and the parent of the child.

 

     (g) The willingness of the grandparent, except in the case of

 

abuse or neglect, to encourage a close relationship between the

 

child and the parent or parents of the child.

 


     (h) Any history of physical, emotional, or sexual abuse or

 

neglect of any child by the grandparent.

 

     (i) Whether the parent's decision to deny, or lack of an offer

 

of, grandparenting time or electronic communication is related to

 

the child's well-being or is for some other unrelated reason.

 

     (j) Whether the equipment for providing the type of electronic

 

communication requested and the service for using the equipment is

 

available to the parent of the child.

 

     (k) (j) Any other factor relevant to the physical and

 

psychological well-being of the child.

 

     (7) If the court has determined that a grandparent has met the

 

standard for rebutting the presumption described in subsection (4),

 

the court may refer that grandparent's complaint or motion for

 

grandparenting time or electronic communication filed under

 

subsection (3) to domestic relations mediation as provided by

 

supreme court rule. If the complaint or motion is referred to the

 

friend of the court mediation service and no settlement is reached

 

through friend of the court mediation within a reasonable time

 

after the date of referral, the complaint or motion shall be heard

 

by the court as provided in this section.

 

     (8) A grandparent may not file more than once every 2 years,

 

absent a showing of good cause, a complaint or motion under

 

subsection (3) seeking a grandparenting time or electronic

 

communication order. If the court finds there is good cause to

 

allow a grandparent to file more than 1 complaint or motion under

 

this section in a 2-year period, the court shall allow the filing

 

and shall consider the complaint or motion. Upon motion of a

 


person, the court may order reasonable attorney fees to the

 

prevailing party.

 

     (9) The court shall not enter an order prohibiting an

 

individual who has legal custody of a child from changing the

 

domicile of the child if the prohibition is primarily for the

 

purpose of allowing a grandparent to exercise the rights conferred

 

in a grandparenting time or electronic communication order entered

 

under this section.

 

     (10) A grandparenting time or electronic communication order

 

entered under this section does not create parental rights in the

 

individual or individuals to whom grandparenting time or electronic

 

communication rights are granted. The entry of a grandparenting

 

time or electronic communication order does not prevent a court of

 

competent jurisdiction from acting upon the custody of the child,

 

the parental rights of the child, or the adoption of the child.

 

     (11) A court shall not modify or terminate a grandparenting

 

time or electronic communication order entered under this section

 

unless it finds by a preponderance of the evidence, on the basis of

 

facts that have arisen since entry of the grandparenting time or

 

electronic communication order or were unknown to the court at the

 

time it entered that order, that a change has occurred in the

 

circumstances of the child or his or her custodian and that a

 

modification or termination of the existing order is necessary to

 

avoid creating a substantial risk of harm to the mental, physical,

 

or emotional health of the child. A court modifying or terminating

 

a grandparenting time or electronic communication order under this

 

subsection shall include specific findings of fact in its order in

 


support of its decision.

 

     (12) The court shall make a record of its analysis and

 

findings under subsections (4), (6), (8), and (11), including the

 

reasons for granting or denying a requested grandparenting time or

 

electronic communication order.

 

     (13) Except as otherwise provided in this subsection, adoption

 

of a child or placement of a child for adoption under the Michigan

 

adoption code, chapter X of the probate code of 1939, 1939 PA 288,

 

MCL 710.21 to 710.70, terminates the right of a grandparent to

 

commence an action for grandparenting time with that child.

 

Adoption of a child by a stepparent under the Michigan adoption

 

code, chapter X of the probate code of 1939, 1939 PA 288, MCL

 

710.21 to 710.70, does not terminate the right of the parent of a

 

deceased parent of the child to commence an action for

 

grandparenting time with that child.

 

     (14) As used in this section, "electronic communication" means

 

communication between a grandparent and his or her grandchild by

 

telephone, electronic mail, instant messaging, video conferencing,

 

webcam, or any other electronic communication device.

 

     Sec. 11. (1) A child whose parental custody is governed by

 

court order has, for the purposes of this section, a legal

 

residence with each parent. Except as otherwise provided in this

 

section, a parent of a child whose custody is governed by court

 

order shall not change a legal residence of the child to a location

 

that is more than 100 miles from the child's legal residence at the

 

time of the commencement of the action in which the order is

 

issued.

 


     (2) A parent's change of a child's legal residence is not

 

restricted by subsection (1) if the other parent consents to, or if

 

the court, after complying with subsection (4), permits, the

 

residence change. This section does not apply if the order

 

governing the child's custody grants sole legal custody to 1 of the

 

child's parents.

 

     (3) This section does not apply if, at the time of the

 

commencement of the action in which the custody order is issued,

 

the child's 2 residences were more than 100 miles apart. This

 

section does not apply if the legal residence change results in the

 

child's 2 legal residences being closer to each other than before

 

the change.

 

     (4) Before permitting a legal residence change otherwise

 

restricted by subsection (1), the court shall consider each of the

 

following factors, with the child as the primary focus in the

 

court's deliberations:

 

     (a) Whether the legal residence change has the capacity to

 

improve the quality of life for both the child and the relocating

 

parent.

 

     (b) The degree to which each parent has complied with, and

 

utilized his or her time under, a court order governing parenting

 

time with the child, and whether the parent's plan to change the

 

child's legal residence is inspired by that parent's desire to

 

defeat or frustrate the parenting time schedule.

 

     (c) The degree to which the court is satisfied that, if the

 

court permits the legal residence change, it is possible to order a

 

modification of the parenting time schedule and other arrangements

 


governing the child's schedule in a manner that can provide an

 

adequate basis for preserving and fostering the parental

 

relationship between the child and each parent; and whether each

 

parent is likely to comply with the modification.

 

     (d) The extent to which the parent opposing the legal

 

residence change is motivated by a desire to secure a financial

 

advantage with respect to a support obligation.

 

     (e) Domestic violence, regardless of whether the violence was

 

directed against or witnessed by the child.

 

     (5) Each order determining or modifying custody or parenting

 

time of a child shall include a provision stating the parent's

 

agreement as to how a change in either of the child's legal

 

residences will be handled. If such a provision is included in the

 

order and a child's legal residence change is done in compliance

 

with that provision, this section does not apply. If the parents do

 

not agree on such a provision, the court shall include in the order

 

the following provision: "A parent whose custody or parenting time

 

of a child is governed by this order shall not change the legal

 

residence of the child except in compliance with section 11 of the

 

"Child Custody Act of 1970", 1970 PA 91, MCL 722.31.".

 

     (6) If this section applies to a change of a child's legal

 

residence and the parent seeking to change that legal residence

 

needs to seek a safe location from the threat of domestic violence,

 

the parent may move to such a location with the child until the

 

court makes a determination under this section.

 

     (7) The court may not use the availability of electronic

 

communication under section 7a to justify or support a change of

 


legal residence under this section.