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".