SENATE BILL No. 1312

 

 

September 25, 2012, Introduced by Senator JONES and referred to the Committee on Judiciary.

 

 

 

     A bill to amend 1970 PA 91, entitled

 

"Child custody act of 1970,"

 

by amending sections 2, 3, 4, 5, 6a, 7, 7a, and 7b (MCL 722.22,

 

722.23, 722.24, 722.25, 722.26a, 722.27, 722.27a, and 722.27b),

 

section 2 as amended by 2005 PA 327, sections 3 and 5 as amended by

 

1993 PA 259, section 4 as amended by 1998 PA 482, section 6a as

 

added by 1980 PA 434, section 7 as amended by 2005 PA 328, section

 

7a as amended by 1996 PA 19, and section 7b as amended by 2009 PA

 

237, and by adding sections 3a and 6f.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2. As used in this act:

 

     (a) "Abandonment" means the person responsible for the child's

 

health and welfare leaves the child with an agency, person, or

 

other entity that is unable or unwilling to assume responsibility

 


for the child. Abandonment includes when a parent, having the

 

ability to visit, contact, or communicate with the child, has

 

regularly and substantially failed or neglected, without good

 

cause, to do so for a period of 1 year or more before the filing of

 

a petition under this act.

 

     (b) (a) "Active military duty" means when a reserve unit

 

member or national guard unit member is called into active military

 

duty.

 

     (c) (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.

 

     (d) (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.

 

     (e) (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.

 

     (f) "Child abuse", "child neglect", and "sexual abuse" mean

 

those terms as defined in section 2 of the child protection law,

 

1975 PA 238, MCL 722.622.

 

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

 


1 of 1978 PA 389, MCL 400.1501.

 

     (h) "Emotional abuse" means an injury to the child's mental

 

condition or welfare that is not necessarily permanent but results

 

in substantial and protracted, visibly demonstrable manifestations

 

of mental distress.

 

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

 

child's natural or adoptive parent.

 

     (j) (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.

 

     (k) (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.

 

     (l) "Maltreatment" means the treatment of a child that involves

 

cruelty or suffering that a reasonable person would recognize as

 

excessive.

 

     (m) "Medical neglect" means failure to seek, obtain, or follow

 

through with medical care for the child, with the failure resulting

 

in or presenting substantial risk of death, disfigurement, or

 

bodily harm or with the failure resulting in an observable and

 

material impairment to the growth, development, or functioning of

 

the child. Medical neglect includes failure to obtain and maintain

 

health care coverage for the child if ordered to do so by the

 

court.

 

     (n) "Mental injury" means a psychological condition that is

 

diagnosed by a mental health professional and is caused by physical

 

or verbal acts, omissions, including the denial of appropriate

 


treatment, or maintaining an environment by the person responsible

 

for the child's health and welfare that renders the child

 

chronically anxious, agitated, depressed, socially withdrawn, or

 

psychotic, causes an unreasonable fear that the child's life or

 

safety or the life or safety of another family member is

 

threatened, or chronically interferes with the child's ability to

 

accomplish age-appropriate milestones.

 

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

 

child.

 

     (p) (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.

 

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

 

parent.

 

     Sec. 3. As used in this act, "best interests of the child"

 

means the sum total of the following factors to be considered,

 

evaluated, and determined by the court in both custody and

 

parenting time disputes:

 

     (a) Child abuse or child neglect, including, but not limited

 

to, 1 or more of the following:

 

     (i) Physical abuse. Nonaccidental injury to a child by the

 

person responsible for the child's health and welfare.

 

     (ii) Sexual abuse.

 

     (iii) Maltreatment.

 

     (iv) Mental injury.

 

     (v) Abandonment.

 

     (vi) Emotional abuse.

 


     (vii) Medical neglect.

 

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

 

between the parties involved and the child.

 

     (c) (b) The capacity and disposition of the parties involved

 

to give the child love, affection, and guidance and to continue the

 

education and raising of the child in his or her religion or creed,

 

if any.

 

     (d) (c) The capacity and disposition of the parties involved

 

to provide the child with food, clothing, medical care or other

 

remedial care recognized and permitted under the laws of this state

 

in place of medical care, and other material needs.

 

     (e) (d) The length of time the child has lived in a stable,

 

satisfactory environment, and the desirability of maintaining

 

continuity.

 

     (f) (e) The permanence, as a family unit, of the existing or

 

proposed custodial home or homes.

 

     (g) (f) The moral fitness of the parties involved.

 

     (h) (g) The mental and physical health of the parties

 

involved.

 

     (i) (h) The home, school, and community record of the child.

 

     (j) (i) The reasonable preference of the child, if the court

 

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

 

     (k) (j) The willingness and ability of each of the parties to

 

facilitate and encourage a close and continuing parent-child

 

relationship between the child and the other parent or the child

 

and the parents. This subdivision does not apply if domestic

 

violence is present.

 


     (l) (k) Domestic violence, regardless of whether the violence

 

was directed against or witnessed by the child.

 

     (m) Patterns of behavior, including, but not limited to,

 

domestic violence or child abuse.

 

     (n) (l) Any other factor considered by the court to be relevant

 

to a particular child custody dispute.

 

     Sec. 3a. (1) If an individual who is 18 or over resides with

 

any party to a custody action or parenting time dispute, the court

 

shall apply the best interest of the child determination to that

 

individual as well as to the parties of the dispute.

 

     (2) If the court determines that an individual described in

 

subsection (1) is unfit in accordance with the best interest of the

 

child factors, that individual must comply with all treatment

 

required by the court as if that individual were a party to the

 

action. If that individual refuses to comply, the court shall order

 

supervised visits when the individual is present.

 

     (3) If the parent with whom the individual described in

 

subsection (1) resides does not comply with a court order under

 

this section, the court shall order supervised visits for that

 

parent with the child until all the conditions of an order under

 

this section are met.

 

     Sec. 4. (1) In all actions 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, at any time in the proceeding, the court determines

 

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

 


court may shall 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 1939 PA 288, MCL 712A.17d. All

 

provisions of section 17d of chapter XIIA of 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. 5. (1) If a child custody dispute is between the parents,

 

between agencies, or between third persons, the best interests of

 

the child control. If the child custody dispute is between the

 

parent or parents and an agency or a third person, the court shall

 

presume that the best interests of the child are served by awarding

 


custody to the parent or parents, unless the contrary is

 

established by clear and convincing evidence.

 

     (2) Notwithstanding other provisions of this act, if a child

 

custody dispute 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 under 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 award custody to the convicted

 

biological parent. This subsection does not apply to a conviction

 

under section 520d(1)(a) of the Michigan penal code, Act No. 328 of

 

the Public Acts of 1931, being section 750.520d of the Michigan

 

Compiled Laws. 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.

 

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

 

individual is convicted of criminal sexual conduct as provided in

 

under 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 award custody of that the child or a sibling of

 

that the child to that the 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 custody.

 

     (4) In considering, evaluating, and determining the best

 


interests of the child when making a decision regarding custody, if

 

the court determines that a parent has sexually, physically,

 

mentally, or emotionally abused the child, the court shall give

 

additional weight to that fact and to the factors under section

 

3(g), (j), and (l).

 

     Sec. 6a. (1) In custody disputes between parents, the parents

 

shall be advised of joint custody. At the request of either parent,

 

the court shall consider an award of joint custody, and shall state

 

on the record the reasons for granting or denying a request. In

 

other cases joint custody may be considered by the court. The court

 

shall determine whether joint custody is in the best interest of

 

the child by considering the following factors:

 

     (a) The factors enumerated in section 3.

 

     (b) Whether the parents will be able to cooperate and

 

generally agree concerning important decisions affecting the

 

welfare of the child.

 

     (c) Whether domestic violence has occurred.

 

     (2) If the parents agree on joint custody, the court shall

 

award joint custody unless the court determines on the record,

 

based upon clear and convincing evidence, that joint custody is not

 

in the best interests of the child. If the court determines that

 

domestic violence has occurred, the court shall make a

 

determination that it is not in the child's best interest to award

 

sole custody, joint custody, or physical custody to the perpetrator

 

of the domestic violence.

 

     (3) If the court awards joint custody, the court may include

 

in its award a statement regarding when the child shall reside with

 


each parent, or may provide that physical custody be shared by the

 

parents in a manner to assure the child continuing contact with

 

both parents.

 

     (4) During the time a child resides with a parent, that parent

 

shall decide all routine matters concerning the child.

 

     (5) If there is a dispute regarding residency, the court shall

 

state the basis for a residency award on the record or in writing.

 

     (6) Joint custody shall not eliminate the responsibility for

 

child support. Each parent shall be responsible for child support

 

based on the needs of the child and the actual resources of each

 

parent. If a parent would otherwise be unable to maintain adequate

 

housing for the child and the other parent has sufficient

 

resources, the court may order modified support payments for a

 

portion of housing expenses even during a period when the child is

 

not residing in the home of the parent receiving support. An order

 

of joint custody, in and of itself, shall not constitute grounds

 

for modifying a support order.

 

     (7) As used in this section, "joint custody" means an order of

 

the court in which 1 or both of the following is specified:

 

     (a) That the child shall reside alternately for specific

 

periods with each of the parents.

 

     (b) That the parents shall share decision-making authority as

 

to the important decisions affecting the welfare of the child.

 

     Sec. 6f. (1) In a child custody or parenting time dispute, the

 

court may interview the child privately to determine if the child

 

is of sufficient age to express a preference regarding custody or

 

parenting time, and, if so, the reasonable preference of the child.

 


The court shall focus the interview on these determinations, and

 

the information received shall be applied only to the reasonable

 

preference factor.

 

     (2) If a court in a child custody or parenting time dispute

 

allows the testimony of the child to be taken in court and the

 

child is under the age of 16 years old, all of the following

 

procedures apply:

 

     (a) If pertinent, the witness shall be permitted the use of

 

dolls or mannequins, including, anatomically correct dolls or

 

mannequins, to assist the witness in testifying on direct and

 

cross-examination.

 

     (b) The witness shall be permitted to have a named support

 

person sit with, accompany, or be in close proximity to the witness

 

during his or her testimony. A notice of intent to use a named

 

support person shall name the support person, identify the

 

relationship the support person has with the witness, and give

 

notice to all parties to the proceeding that the witness may

 

request that the named support person sit with the witness when the

 

witness is called upon to testify during any stage of the

 

proceeding. The notice of intent to use a named support person

 

shall be filed with the court and shall be served upon all parties

 

to the proceeding. The court shall rule on a motion objecting to

 

the use of a named support person before the date on which the

 

witness desires to use the named support person.

 

     (c) If, on the motion of a party made before a hearing, the

 

court finds on the record that the special arrangements specified

 

in subdivision (d) are necessary to protect the welfare of the

 


witness, the court shall order those special arrangements. In

 

determining whether it is necessary to protect the welfare of the

 

witness, the court shall consider all of the following:

 

     (i) The age of the witness.

 

     (ii) The nature of the conduct that will be the subject of the

 

testimony.

 

     (iii) The desire of the witness or the witness's parent,

 

guardian, or other party to the action to have the testimony taken

 

in a room closed to the public.

 

     (d) If the court determines on the record under subdivision

 

(c) that it is necessary to protect the welfare of the witness, the

 

court may order both of the following:

 

     (i) That all persons not necessary to the proceeding be

 

excluded from the courtroom during the witness's testimony.

 

     (ii) To protect the witness from directly viewing the

 

defendant, that the courtroom be arranged so that a party is seated

 

as far from the witness stand as is reasonable and not directly in

 

front of the witness stand. The party's position shall be located

 

in a manner that allows the party to hear and see the witness and

 

be able to communicate with his or her attorney.

 

     (e) If, on the motion of a party or on the court's own motion,

 

the court finds on the record that the witness is or will be

 

psychologically or emotionally unable to testify at a court

 

proceeding even with the benefit of the protections afforded the

 

witness under subdivisions (a) to (d), the court shall order that a

 

deposition of the witness's testimony be taken to be admitted into

 

evidence instead of the witness's live testimony. The court may

 


impose restrictions on a deposition under this subdivision that the

 

court determines are necessary to protect the witness.

 

     (f) Any other protections or procedures afforded to the

 

witness by law or court rule.

 

     Sec. 7. (1) If a child custody dispute has been submitted to

 

the circuit court as an original action under this act or has

 

arisen incidentally from another action in the circuit court or an

 

order or judgment of the circuit court, for the best interests of

 

the child the court may do 1 or more of the following:

 

     (a) Award the custody of the child to 1 or more of the parties

 

involved or to others and provide for payment of support for the

 

child, until the child reaches 18 years of age. Subject to section

 

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

 

MCL 552.605b, the court may also order support as provided in this

 

section for a child after he or she reaches 18 years of age. The

 

court may require that support payments shall be made through the

 

friend of the court, court clerk, or state disbursement unit.

 

     (b) Provide for reasonable parenting time of the child by the

 

parties involved, by the maternal or paternal grandparents, or by

 

others, by general or specific terms and conditions. Parenting time

 

of the child by the parents is governed by section 7a.

 

     (c) Modify or amend its previous judgments or orders for

 

proper cause shown or because of change of circumstances until the

 

child reaches 18 years of age and, subject to section 5b of the

 

support and parenting time enforcement act, 1982 PA 295, MCL

 

552.605b, until the child reaches 19 years and 6 months of age.

 

Before the court modifies or amends a previous judgment or order,

 


the moving party must prove that a change of circumstance has

 

occurred. The court shall not modify or amend its previous

 

judgments or orders or issue a new order so as to change the

 

established custodial environment of a child unless there is

 

presented clear and convincing evidence that it is in the best

 

interest of the child. The custodial environment of a child is

 

established if over an appreciable time the child naturally looks

 

to the custodian in that environment for guidance, discipline, the

 

necessities of life, and parental comfort. The age of the child,

 

the physical environment, and the inclination of the custodian and

 

the child as to permanency of the relationship shall also be

 

considered. If a motion for change of custody is filed during the

 

time a parent is in active military duty, the court shall not enter

 

an order modifying or amending a previous judgment or order, or

 

issue a new order, that changes the child's placement that existed

 

on the date the parent was called to active military duty, except

 

the court may enter a temporary custody order if there is clear and

 

convincing evidence that it is in the best interest of the child.

 

Upon a parent's return from active military duty, the court shall

 

reinstate the custody order in effect immediately preceding that

 

period of active military duty. If a motion for change of custody

 

is filed after a parent returns from active military duty, the

 

court shall not consider a parent's absence due to that military

 

duty in a best interest of the child determination.

 

     (d) Utilize a guardian ad litem or the community resources in

 

behavioral sciences and other professions in the investigation and

 

study of custody disputes and consider their recommendations for

 


the resolution of the disputes.

 

     (e) Take any other action considered to be necessary in a

 

particular child custody dispute.

 

     (f) Upon petition consider the reasonable grandparenting time

 

of maternal or paternal grandparents as provided in section 7b and,

 

if denied, make a record of the denial.

 

     (2) A judgment or order entered under this act providing for

 

the support of a child is governed by and is enforceable as

 

provided in the support and parenting time enforcement act, 1982 PA

 

295, MCL 552.601 to 552.650. If this act contains a specific

 

provision regarding the contents or enforcement of a support order

 

that conflicts with a provision in the support and parenting time

 

enforcement act, 1982 PA 295, MCL 552.601 to 552.650, this act

 

controls in regard to that provision.

 

     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 absent any form of

 

abuse or danger to the child. If the court determines that there is

 

abuse or danger to the child, there is a presumption that the

 

child's safety is the best interest of the child. 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 750.520 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 the child or a sibling of

 

that the child to that the 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) In considering, evaluating, and determining the best

 

interests of the child and considering the factors under subsection

 

(7) when making a decision regarding parenting time, if the court

 

determines that a parent has sexually, physically, mentally, or

 

emotionally abused the child, the court shall give additional

 

weight to that fact and to the factors under section 3(g), (j), and

 

(l) and subsection (7)(c) and (d).

 

     (7) (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.

 

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

 

requested by either party at any time.

 

     (9) (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.

 

     (10) (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.

 

     (11) If a parent has been awarded sole custody under a court

 

order that does not arise from an agreement of the parents, the

 

custodial parent may deviate from the friend of the court's

 

suggested parenting time schedule for any period that lasts 1 week

 

or longer.

 

     (12) (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.

 

     (13) (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.

 

     (14) (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.

 

     (15) (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.

 

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

 

time 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 is

 

deceased.

 

     (d) The child's parents have never been married , they and 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), (14),

 

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 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 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 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

 

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 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 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 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 To give deference to the decisions of fit

 

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

 

is a presumption that a fit parent's decision to deny

 

grandparenting time 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 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 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, the court shall dismiss a

 

complaint or motion seeking an order for grandparenting time 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. 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 order, the court shall

 

enter an order providing for reasonable grandparenting time of 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 is related to the child's well-being or is

 

for some other unrelated reason.

 

     (j) Any other factor relevant to the physical and

 

psychological well-being of the child.

 

     (7) In considering the best interests of the child under this

 

section, if the court determines that a grandparent has sexually,

 

physically, mentally, or emotionally abused the child, the court

 

shall give additional weight to that fact and to the factors under

 

subsection (6)(c), (e), and (h).

 

     (8) (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 filed under subsection (3) to alternative

 

dispute resolution as provided by supreme court rule. If the

 

complaint or motion is referred to the friend of the court for

 

alternative dispute resolution and no settlement is reached through

 

friend of the court alternative dispute resolution within a

 

reasonable time after the date of referral, the complaint or motion

 

shall be heard by the court as provided in this section.

 

     (9) (8) A Absent a showing of good cause, a grandparent may

 

shall not file a complaint or motion under subsection (3) more than

 


once every 2 years. , absent a showing of good cause, a complaint

 

or motion under subsection (3) seeking a grandparenting time order.

 

If the court finds there is good cause to allow a grandparent to

 

file more than 1 complaint or motion under this section subsection

 

(3) 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.

 

     (10) (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 order entered under this section.

 

     (11) (10) A grandparenting time order entered under this

 

section does not create parental rights in the an individual or

 

individuals to whom grandparenting time rights are granted. The

 

entry of a grandparenting time 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.

 

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

 

grandparenting time 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 order or

 

were unknown to the court at the time it entered that the 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 order under

 

this subsection shall include specific findings of fact in its

 

order in support of its decision.

 

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

 

findings under subsections (4), (6), (8), and (11), (9), and (12),

 

including the reasons for granting or denying a the requested

 

grandparenting time order.

 

     (14) (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 the 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 the child.

 

     Enacting section 1. This amendatory act may be referred to as

 

"Sean's Law".