SENATE BILL No. 989

 

 

February 29, 2012, Introduced by Senator HOPGOOD and referred to the Committee on Judiciary.

 

 

 

     A bill to amend 1970 PA 91, entitled

 

"Child custody act of 1970,"

 

by amending sections 2, 5, and 7a (MCL 722.22, 722.25, and

 

722.27a), section 2 as amended by 2005 PA 327, section 5 as amended

 

by 1993 PA 259, and section 7a as amended by 1996 PA 19, and by

 

adding section 5a.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2. As used in this act:

 

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

 

national guard unit member is called into active military duty.

 

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

 

organization, or governmental unit or official, whether of this

 

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

 

minor children, including a licensed child placement agency.

 


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

 

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

 

traditional attorney-client relationship with the child, as

 

governed by the Michigan rules of professional conduct. An attorney

 

defined under this subdivision owes the same duties of undivided

 

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

 

expressed wishes as the attorney would to an adult client.

 

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

 

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

 

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

 

child and children who have reached 18 years of age.

 

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

 

child's natural or adoptive parent.

 

     (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.

 

     (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.

 

     (h) "Michigan penal code" means the Michigan penal code, 1931

 

PA 328, MCL 750.1 to 750.568.

 

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

 

child.

 

     (j) "Sex offenders registration act" means the sex offenders

 

registration act, 1994 PA 295, MCL 28.721 to 28.736.

 

     (k) (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.

 

     (l) (j) "Third person" means an individual other than a parent.

 

     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 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 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

 

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

 

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

 

1931 the Michigan penal code, 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 desires, the child or sibling consent to the custody.

 

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

 

individual is required to register under the sex offenders

 

registration act, the provisions of section 5a control.

 

     Sec. 5a. (1) Notwithstanding other provisions of this act, a

 

court shall not grant custody of or parenting time with a child to

 

an individual who is required to register under the sex offenders

 

registration act for an offense that would make it contrary to the

 

best interests of the child's health, safety, or protection for

 

such custody or parenting time or for an offense in which the

 

victim was a child or if the individual has been convicted under

 

section 145a, 145b, 145d, 520b to 520e, or 520g of the Michigan

 

penal code, MCL 750.145a, 750.145b, 750.145d, 750.520b to 750.520e,

 

and 750.520g, unless the court finds that there is no significant

 

risk to the child and states its reasons in writing or on the

 

record and both the child's other parent and, if the court

 

considers the child to be of sufficient age to express his or her

 

desires, the child consent to the custody or parenting time.

 

     (2) No individual shall be granted custody of or parenting

 

time with a child if anyone residing in the individual's household

 

is required to register under the sex offenders registration act as

 

a result of a felony conviction in which the victim was a child or

 

for an offense that would make it contrary to the best interests of

 


the child's health, safety, or protection for such custody or

 

parenting unless the court finds that there is no significant risk

 

to the child and states its reasons in writing or on the record and

 

both the child's other parent and, if the court considers the child

 

to be of sufficient age to express his or her desires, the child

 

consent to the custody or parenting time.

 

     (3) The fact that a child is permitted unsupervised contact

 

with an individual who is required, as a result of a felony

 

conviction in which the victim was a child, to be registered under

 

the sex offenders registration act is prima facie evidence that the

 

child is at significant risk. When making a determination regarding

 

significant risk to the child, the prima facie evidence constitutes

 

a presumption affecting the burden of producing evidence. The

 

individual required to register under the sex offenders

 

registration act has the burden of rebutting the presumption. This

 

presumption does not apply if there are factors mitigating against

 

its application, including whether the other party seeking custody

 

or parenting time is also required, as the result of a felony

 

conviction in which the victim was a child, to register under the

 

sex offenders registration act.

 

     (4) Before making a determination under subsection (1) or (2)

 

to grant custody of or parenting time with a child, the court shall

 

determine if the child's parent who is not required to register

 

under the sex offenders registration act is a fit parent and if

 

that parent is making the decision on custody or parenting time in

 

the best interest of the child's health, safety, or protection. If

 

the court determines that the parent described in this subsection

 


is fit and is making the decision on custody or parenting time in

 

the best interest of the child's health, safety, or protection, the

 

court may allow that parent to exercise his or her ability to deny

 

custody or parenting time as provided in subsection (1) or (2). If

 

the court determines that the parent described in this subsection

 

is not fit or is not acting in the best interest of the child's

 

health, safety, or protection, the court shall state in writing why

 

the court does not consider that parent fit, why the court

 

determined that the parent is not acting in the best interest of

 

the child's health, safety, or protection, or why the court has

 

determined that the child would not be at significant risk if the

 

court grants custody or parenting time to the parent required to

 

register under the sex offenders registration act.

 

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

 

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

 

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

 

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

 

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

 

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

 

promote a strong relationship between the child and the parent

 

granted parenting time.

 

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

 

the court shall order the parenting time terms unless the court

 

determines on the record by clear and convincing evidence that the

 

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

 

     (3) A Except as provided in section 5a, 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 MCL

 

750.520a to 750.520e and 750.520g, the court shall not grant

 

parenting time to the convicted biological parent. This subsection

 

does not apply to a conviction under section 520d(1)(a) of Act No.

 

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

 

Michigan Compiled Laws the Michigan penal code, 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, MCL 750.520a to 750.520e and

 

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

 

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

 

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

 

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

 

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

 

parenting time.

 


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

 

individual is required to register under the sex offenders

 

registration act, the provisions of section 5a control.

 

     (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) (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.

 

     (12) (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.

 

     (13) (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.

 

     (14) (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.