HOUSE BILL NO. 6006
A bill to amend 1970 PA 91, entitled
"Child custody act of 1970,"
by amending sections 3, 5, 6a, 7, and 7a (MCL 722.23, 722.25, 722.26a, 722.27, and 722.27a), section 3 as amended by 2016 PA 95, sections 5 and 7a as amended by 2016 PA 96, section 6a as added by 1980 PA 434, and section 7 as amended by 2015 PA 52, and by adding section 4b.
the people of the state of michigan enact:
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 a way that safeguards and enhances the welfare of the child:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(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.
(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.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Sec. 4b. (1) In a qualified child custody proceeding in which a parent has been alleged to have committed a qualified act, all of the following apply:
(a) Before the court makes a finding with respect to the allegation, the court must consider any admissible and relevant qualified evidence. As used in this subdivision, "qualified evidence" means evidence that is probative of whether the parent has committed a qualified act and includes, but is not limited to, all of the following:
(i) Each qualified protection order or restraining order against the parent.
(ii) Each arrest of the parent for a qualified act.
(iii) Each conviction of the parent for a qualified act.
(iv) Each medical record that relates to the allegation.
(v) Each letter that is from a victim advocate or victim service provider and relates to the allegation.
(vi) Either of the following:
(A) Each evidence-based risk, lethality, or danger assessment tool completed by a victim service provider, victim advocate, or health professional.
(B) A risk factors or lethality assessment completed by law enforcement as part of a standard domestic relationship incident report.
(b) If the court finds that a parent who has been alleged to have committed a qualified act did not commit the qualified act, the finding does not preclude the court from considering information described in subdivision (a), or finding that the parent committed a qualified act, at a later time.
(c) Evidence that is from an expert and relates to the alleged qualified act may be admitted only if the expert demonstrates expertise and at least 5 years of experience, 2 of which are with direct services to victims of a qualified act, and the expertise and experience are not solely of a forensic nature.
(2) In a qualified child custody proceeding, all of the following apply:
(a) A court shall not remove a child from a parent or third person who is both of the following, if the only intention for the removal is to improve a deficient relationship with a parent of the child:
(i) Competent, protective, and not physically, emotionally, or sexually abusive.
(ii) An individual with whom the child is bonded or to whom the child is attached.
(b) A court shall not restrict contact between a child and a parent or third person who is both of the following, if the only intention for the restriction is to improve a deficient relationship with a parent of the child:
(i) Competent, protective, and not physically, emotionally, or sexually abusive.
(ii) An individual with whom the child is bonded or to whom the child is attached.
(c) A court shall not order a reunification treatment unless there is generally accepted and scientifically valid proof of the safety, effectiveness, and therapeutic value of the reunification treatment.
(d) A court shall not order a reunification treatment that is predicated on cutting off a child from a parent with whom the child is bonded or to whom the child is attached.
(e) If a child resists contact with the abusive parent, the court, in any order to remediate the child's resistance, must primarily address the behavior of the abusive parent or the contributions of the abusive parent before ordering the other parent of the child to take steps to improve the relationship of the child with the abusive parent.
(3) As used in this section:
(a) "Domestic violence" means that term as defined in section 1 of 1978 PA 389, MCL 400.1501.
(b) "Forensic" means professional work that a court orders for assistance in a child custody dispute, including, but not limited to, the evaluation or treatment of a party to the dispute or a child of a party to the dispute.
(c) "Qualified act" means any of the following:
(i) Child abuse, including, but not limited to, child sexual abuse.
(ii) Domestic violence.
(iii) Physical abuse.
(iv) Sexual abuse or sexual violence.
(v) A pattern of any other coercive behavior committed to gain or maintain power and control over a victim, including, but not limited to, any of the following behavior:
(A) Verbal abuse.
(B) Psychological abuse.
(C) Economic abuse.
(D) Technological abuse.
(d) "Qualified child custody proceeding" means a private family court proceeding in state or local court that, with respect to a child, involves the care or custody of the child in a private divorce, separation, visitation, paternity, child support, legal or physical custody, or civil protection order proceeding between the parents of the child. Qualified child custody proceeding does not include any of the following:
(i) A child protective, abuse, or neglect proceeding.
(ii) A juvenile justice proceeding.
(iii) A child placement proceeding in which a state, local, or tribal government, a designee of such a government, or any contracted child welfare agency or child protective services agency of such a government is a party to the proceeding.
(e) "Qualified protection order or restraining order" means protection order or restraining order as that term is described in 34 USC 12291.
(f) "Reunification treatment" means a treatment or therapy aimed at reuniting or reestablishing a relationship between a child and an estranged or rejected parent or other family member of the child.
(g) "Technological abuse" means an act or pattern of behavior that occurs within domestic violence, sexual assault, dating violence, or stalking and that is intended to harm, threaten, intimidate, control, stalk, harass, impersonate, exploit, extort, or monitor, except as otherwise permitted by law, another person, using any form of technology, including, but not limited to, internet-enabled devices, online spaces and platforms, computers, mobile devices, cameras and imaging programs, apps, location tracking devices, or communication technologies, or any other emerging technologies.
(h) "Victim advocate" means a person, whether paid or serving as a volunteer, who provides services to victims of domestic violence, sexual assault, stalking, or dating violence under the auspices or supervision of a victim service provider.
(i) "Victim service provider" means a nonprofit, nongovernmental, or tribal organization or rape crisis center, including a state or tribal coalition, that assists victims of or advocates for victims of domestic violence, dating violence, sexual assault, or stalking. A provider described in this subdivision includes, but is not limited to, a domestic violence shelter, a faith-based organization, and other organization, with a documented history of effective work concerning domestic violence, dating violence, sexual assault, or stalking.
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 any other provisions provision 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 sections 520a to 520e and 520g of the Michigan penal code, 1931 PA 328, MCL 750.520a to 750.520e and 750.520g, or a substantially similar statute of another state or the federal government, or is found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration, the court shall not award custody to that biological parent. This subsection does not apply to a conviction under section 520d(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520d. This subsection does not apply if, after the date of the conviction, or the date of the finding in a fact-finding hearing described in this subsection, the biological parents cohabit and establish a mutual custodial environment for the child.
(3) An offending parent is not entitled to custody of a child described in subsection (2) without the consent of that child's other parent or guardian.
(4) Notwithstanding any other provisions provision of this act, subsection (2) does not relieve an offending parent of any support or maintenance obligation to the child. The other parent or the guardian of the child may decline support or maintenance from the offending parent.
(5) A parent may assert an affirmative defense of the provisions of subsection (2) in a proceeding brought by the offending parent regarding a child described in subsection (2).
(6) Notwithstanding any other provisions provision of this act, if an individual is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of 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 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 the child's or sibling's desires, the child or sibling consent to the custody.
(7) If a child custody dispute involves an abusive parent described in section 7, the court shall not award custody to the abusive parent.
(8) (7) As used in this section, "offending parent" means a parent who has been convicted of criminal sexual conduct as described in subsection (2) or who has been found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration as described in subsection (2).
Sec. 6a. (1) In a child custody disputes dispute between parents, the parents shall must 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 the request. An abusive parent described in section 7 is not eligible for joint custody. In other cases, joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest interests 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 on important decisions affecting that affect the welfare of the child.
(2) If the parents agree on joint custody, the court shall award joint custody unless the court determines, on the record , and based upon on clear and convincing evidence, that joint custody is not in the best interests of the child.
(3) If the court awards joint custody, in the court's award, the court may include in its award a statement regarding when the child shall will reside with each parent , or may provide that physical custody must be shared by the parents in a manner to assure that ensures that the child continuing continues contact with both parents.
(4) During the time a child resides with a parent, that the parent shall decide all routine matters concerning that concern 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 does not eliminate the responsibility for child support. Each parent shall be is 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 does 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 will reside alternately, and for specific periods, with each of the parents.
(b) That the parents shall will share decision-making authority as to on the important decisions affecting that affect the welfare of the child.
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, but the court shall not award custody of the child to an abusive parent of the child. 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 the child reaches 18 years of age. The court may require that support payments shall must 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) Subject to subsection (3), modify or amend its previous judgments or orders for proper cause shown or because of a 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. 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 interests 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 must also be considered. If a motion for change of custody is filed while a parent is active duty, the court shall not consider a parent's absence due to that active duty status in a best interest interests 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 On 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 that is entered under this act providing and provides 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.
(3) As provided in the servicemembers civil relief act, 50 USC 501 3901 to 597b, 4043, if a motion for change of custody is filed during the time a parent is on deployment, a parent may file and the court shall entertain an application for stay. 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 deployment, except that the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interests of the child. When If a temporary custody order is issued under this subsection, the court may include a limit on the period of time that the temporary custody order remains in effect. At any stage before final judgment in the proceeding, the parent may file an application for stay or otherwise request a stay of the proceedings or file an application for an extension of a stay. The parent and the custodial child are not required to be present to consider the application for stay or extension of a stay. The application for stay or extension of a stay is sufficient if it is a signed, written statement , and certified to be true under penalty of perjury. The same conditions for the initial stay apply to an application for an extension of a stay. The parent's duration of deployment shall must not be considered in making a best interest interests of the child determination.
(4) The parent shall inform the court of the deployment end date before or within not later than 30 days after that deployment end date. Upon On notification of a parent's deployment end date, the court shall reinstate the custody order in effect immediately preceding that period of deployment. If a motion for change of custody is filed after a parent returns from deployment, the court shall not consider a parent's absence due to that deployment in making a best interest interests of the child determination. Future deployments shall must not be considered in making a best interest interests of the child determination.
(5) If the deploying parent and the other parent share custody, the deploying parent must shall notify the other parent of an upcoming deployment within a reasonable period of time.
Sec. 7a. (1) Parenting time shall must 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 the child's parents. Except as otherwise provided in this section, parenting time shall must 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 any other provisions provision 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, 1931 PA 328, MCL 750.520a to 750.520e and 750.520g, or a substantially similar statute of another state or the federal government, or is found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration, the court shall not grant parenting time to that biological parent. This subsection does not apply to a conviction under section 520d(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520d. This subsection does not apply if, after the date of the conviction, or the date of the finding in a fact-finding hearing described in this subsection, the biological parents cohabit and establish a mutual custodial environment for the child.
(5) A parent may assert an affirmative defense of the provisions of subsection (4) in a proceeding brought by the offending parent regarding a child described in subsection (4).
(6) Notwithstanding any other provisions provision of this act, if an individual is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of 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 the child's or sibling's desires, the child or sibling consent to the parenting time.
(7) 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 the purpose 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 must 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) Parenting time shall must be granted in specific terms if requested by either party at any time.
(9) 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 to transport 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 ensure 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) Except as provided in this subsection, a parenting time order shall must contain a prohibition on exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. This subsection does not apply if both parents provide the court with written consent to allow a parent to exercise parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
(11) If a court orders parenting time for an abusive parent described in section 7, the parenting time order must require that the parenting time for the abusive parent be supervised and conducted in accordance with the guidelines for parenting time published by the state court administrative office. The abusive parent must bear the cost of the supervision.
(12) (11) During the time a child is with a parent to whom parenting time has been awarded, that the parent shall decide all routine matters concerning that concern the child.
(13) (12) Prior to Before 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.
(14) (13) If the opposing party objects to the ex parte interim order, he or she the opposing party 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.
(15) (14) 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 must 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.
(16) (15) An ex parte interim order issued under this section shall must 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.
(17) (16) As provided in the servicemembers civil relief act, 50 USC 501 3901 to 597b, 4043, if a motion for change of parenting time is filed during the time a parent is on deployment, a parent may file and the court shall entertain an application for stay. The court shall presume that the best interests of the child are served by not entering an order modifying or amending a previous judgment or order, or issuing a new order, that changes the parenting time that existed on the date the parent was called to deployment, unless the contrary is established by clear and convincing evidence, at which time the court may enter a temporary parenting time order. When If a temporary parenting time order is issued under this subsection, the court may include a limit on the period of time that the temporary parenting time order remains in effect. At any stage before final judgment in the proceeding, the parent may file an application for stay or otherwise request a stay of proceedings or file an application for an extension of a stay. The parent and the custodial child are not required to be present to consider the application for stay or extension of a stay. The application for stay or extension of a stay is sufficient if it is a signed, written statement , and certified to be true under penalty of perjury. The same conditions for the initial stay apply to applications for an extension of a stay.
(18) (17) The parent shall inform the court of the deployment end date before or within not later than 30 days after that deployment end date. Upon On notification of a parent's deployment end date, the court shall reinstate the parenting time order in effect immediately preceding that period of deployment. If a motion for change of parenting time is filed after a parent returns from deployment, the court shall not consider a parent's absence due to that deployment in making a determination regarding change of parenting time. Future deployments shall must not be considered in making a best interest interests of the child determination.
(19) (18) If the deploying parent and the other parent share custody, the deploying parent must shall notify the other parent of an upcoming deployment within a reasonable period of time.
(20) (19) As used in this section, "offending parent" means a parent who has been convicted of criminal sexual conduct as described in subsection (4) or who has been found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration as described in subsection (4).
Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 102nd Legislature are enacted into law:
(a) Senate Bill No.____ or House Bill No. 6008 (request no. 04150'23).
(b) Senate Bill No.____ or House Bill No. 6007 (request no. 05055'23).