February 16, 2006, Introduced by Reps. Moolenaar, Stewart, Hummel, Gosselin, Sheltrown, Marleau, Wojno, Moore, LaJoy, Nofs, Lipsey, Emmons, Meyer, Vander Veen, Gleason, Hildenbrand, Stahl, Garfield, Sheen, Mortimer, Shaffer, Kahn, Hansen, Hoogendyk, David Law, Kooiman, Elsenheimer and Lemmons, III and referred to the Committee on Family and Children Services.
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 2004 PA 542, section 4 as amended by 1998
PA 482, and section 11 as added by 2000 PA 422, and by adding
sections 5a, 5b, 5c, 5d, 5e, and 5f.
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
after divorce; to encourage postdivorce parental cooperation by
requiring a process to establish a parenting plan; to prescribe the
contents of and procedures for modifying 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 if the issue is in dispute; 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) "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.
(b) "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.
(c) "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.
(d) "Domestic violence" means an act of physical, sexual, or
serious emotional abuse by an individual against his or her spouse,
or former spouse, or against another individual with whom the
individual has a child in common or with whom the individual has
resided.
(e) (d)
"Grandparent" means a natural or adoptive
parent of
a child's natural or adoptive parent.
(f) (e)
"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.
(g) (f)
"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.
(h) (g)
"Parent" means the natural or adoptive
parent of a
child.
(i) "Personal protection order" means an order issued under
section 2950 of the revised judicature act of 1961, 1961 PA 236,
MCL 600.2950.
(j) "Serious emotional abuse" means abuse that would cause a
reasonable person to feel terrorized, intimidated, or threatened.
(k) (h)
"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.
(l) (i)
"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 under court order if custody
is in dispute or a court-approved parenting plan if custody is not
in dispute in accordance with this act.
(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.
(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.
(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) The state court administrative office shall
develop and make available a form for use by a parent in completing
a parenting plan. The form shall be given to both parents at the
time a party files for divorce, and it shall be made available to
individuals authorized to conduct a divorce education program as
provided in section 5 of 1846 RS 84, MCL 552.5. A parenting plan
shall have the following objectives:
(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 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.
(c) To encourage the parents to meet their responsibilities to
their children through cooperative arrangements in the parenting
plan, rather than by relying on judicial intervention.
(2) The form shall indicate the subject matter that must be
addressed in a parenting plan and shall contain a sworn statement
signed by each parent that the proposed parenting plan is proposed
in good faith.
(3) A form developed under this section shall contain notice
that either party may obtain legal counsel.
(4) If 1 or more parties obtain legal counsel in completing
the parenting plan, the party or parties shall disclose to the
court that legal counsel was obtained.
(5) If a child is the subject of a court-approved parenting
plan, the child's custody is not in dispute and the court may order
the child's parents to be governed by the parenting plan without
designating either parent as the legal or physical custodian of the
child, unless a designation is made under section 5f.
Sec. 5b. (1) Except as otherwise provided in this act, in a
divorce, separate maintenance, or annulment action involving a
child's parents, the parents shall file with the court a proposed
parenting plan that is agreed on by the parents and that conforms
to the requirements of this act. The parents shall file the
parenting plan required by this subsection before a hearing on or
determination of issues regarding a child of the marriage.
(2) If there is evidence that either parent has committed
domestic violence or the parents do not agree on a parenting plan,
each parent shall file with the court and serve on the other parent
a proposed parenting plan on or before the earlier of the following
dates:
(a) Twenty-eight days after either parent files and serves a
notice requesting a pretrial conference.
(b) Twenty-six weeks after commencement of the action. The
parents may extend this period by stipulation.
(3) A parent who files a proposed parenting plan in compliance
with subsection (2) may move the court for an order of default
adopting that parent's parenting plan if the other parent fails to
file a proposed parenting plan as required in subsection (2).
Sec. 5c. (1) A parent submitting a proposed parenting plan
shall attach a sworn statement that the plan is proposed by that
parent in good faith. Either parent may file and serve an amended
proposed parenting plan according to the rules for amending
pleadings.
(2) If each parent files a parenting plan or the parenting
plan is otherwise in dispute, the parents shall attempt to arrive
at a mutually agreed upon parenting plan by an alternative dispute
resolution process either through the friend of the court mediation
services or through another agency or an individual that both
parties agree upon. This subsection does not apply if there is
evidence that either parent has committed domestic violence.
(3) If an alternative dispute resolution process is
unsuccessful or inapplicable, and a mandatory settlement conference
is provided by court rule, the parents shall attend a mandatory
settlement conference. A judge or a friend of the court referee
shall preside over the mandatory settlement conference. The parents
shall review in good faith the proposed terms of the parenting
plans and other issues relevant to the action with the judge or
referee. A fact or legal issue that is not in dispute at the time
of the settlement conference shall be entered as stipulated for
purposes of final hearing or trial in the matter.
(4) The court shall not issue an order implementing a disputed
parenting plan until the court holds a hearing on the proposed plan
or plans. An action involving a child governed by this act has
precedence for hearing and assignment for trial over other civil
actions.
Sec. 5d. (1) The parenting plan shall contain provisions
governing resolution of future disputes between the parents.
(2) Unless precluded or limited by this section, the court
shall provide alternatives to court action for resolving disputes
regarding the establishment or modification of a parenting plan,
which may include counseling, mediation, or arbitration by a
specified individual or agency, including the friend of the court.
If the court finds that a parent uses or frustrates the use of an
alternative dispute resolution process without good cause, the
court shall award attorney fees and financial sanctions to the
other parent. The court shall set forth the requirements of this
subsection in the order approving the parenting plan.
(3) The court shall not order an alternative dispute
resolution process if the court finds that a limiting factor under
this section applies or that either parent is unable to afford the
cost of the proposed dispute resolution process. If a dispute
resolution process is not precluded or limited, then, in
designating the process, the court shall consider all relevant
factors, including, but not limited to, all of the following:
(a) Differences between the parents that would substantially
inhibit their effective participation in a designated process.
(b) The parents' wishes or agreements and, if the parents have
entered into agreements, whether the agreements were made knowingly
and voluntarily.
(c) Differences in the parents' financial circumstances that
may affect their ability to participate fully in a given dispute
resolution process.
(4) A parenting plan shall not require 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
conduct:
(a) Willful abandonment 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.
Sec. 5e. (1) 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.
(2) A parent seeking modification of a parenting plan shall
submit, together with his or her petition, a sworn statement
setting forth facts supporting the requested modification and shall
give notice, together with a copy of his or her sworn statement, to
other parties to the proceedings, who may file opposing sworn
statements. The court shall deny the petition unless it finds that
proper cause for hearing the motion is established by the sworn
statements, in which case it shall set a date for hearing on an
order to show cause why the requested modification should not be
ordered. A parent may file a petition for modification of a
parenting plan only in the county of the court that has
jurisdiction over the case.
(3) Except as otherwise provided in section 5d, the court
shall not modify a parenting plan unless the moving party shows
proper cause for a modification or a change of circumstances since
entry of the order approving the parenting plan order. If the
moving party makes the showing required by this subsection and if
the court finds that the modification is in the child's best
interests, the court shall modify the parenting plan.
(4) If the court finds that a petition to modify an earlier
parenting plan is brought, or a refusal to agree to a modification
is made, in bad faith, the court shall assess attorney fees and
court costs of the nonmoving parent against the moving party.
Sec. 5f. 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.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 5698(request no.
00027'05) of the 93rd Legislature is enacted into law.