HB-5701, As Passed House, June 29, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 5701

     A bill to amend 1970 PA 91, entitled

"Child custody act of 1970,"

by amending the title and sections 1, 2, 4, and 11 (MCL 722.21,

722.22, 722.24, and 722.31), the title as amended by 1996 PA 19,

section 2 as amended by 2005 PA 327, section 4 as amended by 1998

PA 482, and section 11 as added by 2000 PA 422, and by adding

section 5a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

TITLE

     An act to declare  the certain inherent rights of  minor

children; to establish a child in relation to his or her parents;

to establish a parenting plan; to prescribe procedures to determine

rights and duties  to their regarding a child's custody, support,

and or parenting time;  in disputed actions;  to establish rights

and duties to provide support for a child after the child reaches

the age of majority under certain circumstances; to provide for

certain procedure and appeals; and to repeal  certain  acts and

parts of acts.

     Sec. 1. This act shall be known and may be cited as the "child

parenting plan or custody dispute act".  of 1970".

     Sec. 2. As used in this act:

     (a) "Active military duty" means when a reserve unit member or

national guard unit member is called into active military duty.

     (b) "Agency" means a legally authorized public or private

organization, or governmental unit or official, whether of this

state or of another state or country, concerned in the welfare of

minor children, including a licensed child placement agency.

     (c) "Attorney" means, if appointed to represent a child under

this act, an attorney serving as the child's legal advocate in a

traditional attorney-client relationship with the child, as

governed by the Michigan rules of professional conduct. An attorney

defined under this subdivision owes the same duties of undivided

loyalty, confidentiality, and zealous representation of the child's

expressed wishes as the attorney would to an adult client.

     (d) "Child" means minor child and children. Subject to section

5b of the support and parenting time enforcement act, 1982 PA 295,

MCL 552.605b, for purposes of providing support, child includes a

child and children who have reached 18 years of age.

     (e) "Domestic violence" means that term as defined in section

1 of 1978 PA 389, MCL 400.1501.

(f)  (e) "Grandparent" means a natural or adoptive parent of

a child's natural or adoptive parent.

(g)  (f) "Guardian ad litem" means an individual whom the

court appoints to assist the court in determining the child's best

interests. A guardian ad litem does not need to be an attorney.

(h)  (g) "Lawyer-guardian ad litem" means an attorney

appointed under section 4. A lawyer-guardian ad litem represents

the child, and has the powers and duties, as set forth in section

4.

(i)  (h) "Parent" means the natural or adoptive parent of a

child.

     (j) "Personal protection order" means an order issued under

section 2950 of the revised judicature act of 1961, 1961 PA 236,

MCL 600.2950.

     (k) "Serious emotional abuse" means abuse that would cause a

reasonable person to feel terrorized, intimidated, or threatened.

(l)  (i) "State disbursement unit" or "SDU" means the entity

established in section 6 of the office of child support act, 1971

PA 174, MCL 400.236.

(m)  (j) "Third person" means an individual other than a

parent.

     Sec. 4. (1) In  all actions an action involving dispute of a

minor child's custody, the court shall declare the child's inherent

rights and establish the rights and duties as to the child's

custody, support, and parenting time in accordance with this act.

     (2) If a child's parents have submitted a parenting plan under

section 5a, the court shall approve or disapprove the plan. If the

court approves of the parenting plan, the court shall adopt the

plan and declare all other rights for the child and duties for the

parents necessary to protect the child's best interests.

     (3) If the parents have not submitted a parenting plan under

section 5a, the court shall take any action the court considers

appropriate, considering the resources of the parties and any other

limiting factors, to assist the parties in developing a parenting

plan or enter an order declaring the child's inherent rights and

establishing the duties of the parents to implement those rights,

including, but not limited to, ordering evaluations, requiring the

parties to engage in counseling, requiring the parties to engage in

alternative dispute resolution, and conducting hearings.

     (4) In all actions involving dispute of a minor child's

custody or parenting time, neither the court nor the friend of the

court shall advocate on behalf of a party or a minor child. In all

actions involving dispute of a minor child's custody or parenting

time, the child's parents shall represent the child’s best

interests.

     (2) If, at any time in the proceeding, the court determines

that the child's best interests are inadequately represented, the

court may appoint a lawyer-guardian ad litem to represent the

child. A lawyer-guardian ad litem represents the child and has

powers and duties in relation to that representation as set forth

in section 17d of chapter XIIA of the probate code of 1939, 1939 PA

288, MCL 712A.17d. All provisions of section 17d of chapter XIIA of

the probate code of 1939, 1939 PA 288, MCL 712A.17d, apply to a

lawyer-guardian ad litem appointed under this act.

(5)  (3) In a proceeding in which a lawyer-guardian ad litem

represents a child, he or she may file a written report and

recommendation. The court may read the report and recommendation.

The court shall not, however, admit the report and recommendation

into evidence unless all parties stipulate the admission. The

parties may make use of the report and recommendation for purposes

of a settlement conference.

(6)  (4) After a determination of ability to pay, the court

may assess all or part of the costs and reasonable fees of the

lawyer-guardian ad litem against 1 or more of the parties involved

in the proceedings or against the money allocated from marriage

license fees for family counseling services under section 3 of 1887

PA 128, MCL 551.103. A lawyer-guardian ad litem appointed under

this section shall not be paid a fee unless the court first

receives and approves the fee.

Sec. 5a. (1) Except as otherwise provided in subsection (2),

in all actions involving a minor child's custody, the parents'

obligation to represent the child's best interests shall include an

attempt to establish a parenting plan. A parenting plan shall be

agreed to by both parents and shall contain at least all of the

following:

     (a) To have the child reared by both the child's father and

the child's mother in a manner that closely approximates their

rearing of the child prior to establishing separate domiciles or

filing for divorce, unless it is not in the child's best interests.

     (b) To provide for the child's care and set forth the

authority and responsibilities of each parent with respect to the

child. A parenting plan is not required to designate a parent as

either the legal or physical custodian of the child.

     (c) To encourage nonadversarial dispute resolution in the

parenting plan, rather than relying on judicial intervention to

resolve a dispute.

     (2) The court shall not require a parent to submit a parenting

plan if that parent files a sworn statement stating that he or he

is a victim of domestic violence by the other parent. The sworn

statement shall be confidential, shall be reviewed only by the

court or, during a criminal investigation, by law enforcement or a

prosecutor, and shall not be a part of the public record of that

divorce action. The sworn statement is exempt from the freedom of

information act, 1976 PA 442, MCL 15.231 to 15.246.

     (3) The court shall not approve a parenting plan that requires

mutual decision making or designation of an alternative dispute

resolution process if the court finds that a parent has engaged in

any of the following:

     (a) Willful abandonment of the child that continues for an

extended period of time or substantial refusal to perform parenting

functions.

     (b) Physical, sexual, or a pattern of emotional abuse of a

child.

     (c) A history of acts of domestic violence or an assault or

sexual assault that causes grievous bodily harm or the fear of that

harm.

     (4) The state court administrative office, at the direction of

the supreme court, shall develop a form for use by a parent in

completing a parenting plan. The form shall be made available to

both parties and individuals authorized to conduct a divorce

education program as provided in section 5 of 1846 RS 84, MCL

552.5.

     (5) If 1 or more parties obtain legal counsel in completing

the parenting plan, the parties shall disclose to the court that

legal counsel was obtained.

     (6) If the court finds that a parent refuses to attend

alternative dispute resolution as provided in the parenting plan,

the court may assess costs and may award attorney fees and costs to

the other parent.

     (7) If a parent fails to comply with the parenting plan or a

child support order, the other parent's obligations under the

parenting plan or the child support order are not affected. The

court may hold a parent who fails to comply with a parenting plan

in contempt of court.

     (8) A parent seeking modification of a parenting plan shall

seek the approval of the other parent and use the dispute

resolution procedures in the parenting plan. If the parents cannot

agree to a modification of the parenting plan, a parent may file a

motion with the court that has jurisdiction over the case. The

court may assess costs against a parent who does not first seek the

approval of the other parent or use the dispute resolution

procedures in the parties' parenting plan before filing a motion

with the court.

     (9) The court shall not modify a parenting plan to change the

custodial environment of the child over the objection of a parent

unless there is presented clear and convincing evidence that it is

in the best interest of the child.

     (10) If the court finds that a motion to modify an earlier

parenting plan is brought in bad faith, or a refusal to agree to a

modification is made in bad faith, the court may assess attorney

fees and court costs against the party acting in bad faith.

     (11) Solely for the purposes of other state or federal

statutes or other legal requirements that require a designation or

determination of legal or physical custody for purposes such as, by

way of example and not limitation, tax exemptions or health care

benefits, the court may designate in the parenting plan or by

separate order a child's legal or physical custodian or custodians.

This designation does not affect either parent's rights and

responsibilities under the parenting plan or another provision of

this act. In the absence of a designation allowed under this

section, the parent with whom the child is scheduled to reside the

majority of the time shall be considered the child's custodian for

those purposes.

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

court order or who is the subject of a court-approved parenting

plan 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 or a parenting plan, 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

or the parenting plan.

     (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 or parenting plan 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 or a parenting plan 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 or parenting plan 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  order/parenting plan shall not change the

legal residence of the child except in compliance with section 11

of the "Child Parenting Plan or Custody  Act of 1970"  Dispute

Act", 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.