January 31, 2013, Introduced by Senators HOPGOOD, SMITH, BIEDA, GREGORY, YOUNG, CASPERSON, HUNTER, JOHNSON, JONES and EMMONS and referred to the Committee on Judiciary.
A bill to amend 1970 PA 91, entitled
"Child custody act of 1970,"
(MCL 722.21 to 722.31) by adding section 5a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5a. (1) Subject to sections 5(2) and (3) and 7a(4) and
(5), and notwithstanding any other provision of this act, the
provisions of this section apply in either of the following
instances:
(a) A party to a child custody dispute is an individual
required to register as a sex offender for an offense in which the
victim was a child.
(b) A party to a child custody dispute resides in the same
household with an individual required to register as a sex offender
for an offense in which the victim was a child.
(2) Subject to sections 5(2) and (3) and 7a(4) and (5), the
court may not grant custody or parenting time to a party to a child
custody dispute described in subsection (1) unless the court finds
both of the following:
(a) There is clear and convincing evidence demonstrating that
custody or parenting time with that party presents no substantial
risk to the child.
(b) There is a preponderance of evidence demonstrating that
denying custody or parenting time with that party creates a
substantial risk of harm to the child's mental, physical, or
emotional health.
(3) If a party seeking custody or parenting time is an
individual required to register as a sex offender for an offense in
which the victim was a child, that party has the burden of proof
with respect to the findings required in subsection (2). If a party
seeking custody or parenting time resides in the same household
with an individual required to register as a sex offender for an
offense in which the victim was a child, that party has the burden
of proof with respect to the findings required in subsection (2).
(4) In deciding whether to award custody or parenting time to
a party described in subsection (1), the court shall consider and
make specific findings in writing or on the record regarding both
of the following:
(a) The factors set forth in section 3. Section 3(j) shall not
be applied to the detriment of a party who objects to a child
having contact with an individual required to register as a sex
offender for any offense, or who takes action to protect the child
or himself or herself from that individual.
(b) All of the following additional factors:
(i) Whether there are objections to custody or parenting time
with the party described in subsection (1), raised by the other
party or by the child, if the court considers the child to be of
sufficient age to express his or her desires.
(ii) If the party seeking custody or parenting time resides in
the same household with an individual required to register as a sex
offender for an offense in which the victim was a child, whether
custody or parenting time can be exercised in a manner that ensures
the child will have no contact with the individual required to
register as a sex offender.
(iii) Whether feasible safeguards can be put in place to
eliminate the risk to the child. Those safeguards include, but are
not limited to, supervision of parenting time by a parent of the
child if that parent is not required to register as a sex offender
or by a person or agency with expertise in child sexual abuse.
(iv) Whether custody or parenting time would be consistent with
existing conditions of parole or other court orders governing
contact with the child or the other party by the individual
required to register as a sex offender for an offense in which the
victim was a child.
(v) Whether the individual required to register as a sex
offender for an offense in which the victim was a child has
complied with existing conditions of parole or with other court
orders governing that individual's contact with the child or the
other party.
(vi) Any history of domestic violence, other sexual offenses,
or other acts or threats of violence against any person by the
individual required to register as a sex offender for an offense in
which the victim was a child.
(vii) Any specialized risk assessment performed on the
individual required to register as a sex offender for an offense in
which the victim was a child by a person or agency with expertise
in child sexual abuse.
(viii) Whether the individual required to register as a sex
offender for an offense in which the victim was a child has
successfully completed a program of evaluation and counseling
designed specifically for sex offenders and conducted by a public
or private agency or a mental health professional as that term is
defined in section 100b of the mental health code, 1974 PA 258, MCL
330.1100b, and as a result of completing that program, does not
pose a risk to children.
(ix) Whether the individual required to register as a sex
offender for an offense in which the victim was a child has
successfully completed a program of substance abuse counseling or
batterer intervention if the court determines that that is
appropriate.
(x) The nature of the existing relationship between the child
and the individual required to register as a sex offender for an
offense in which the victim was a child.
(xi) Whether both parties are subject to the provisions of
subsection (2).
(5) If the court determines that it will grant custody or
parenting time to a party to a child custody dispute described in
subsection (1), the court's order for custody or parenting time
shall not be less restrictive than any existing conditions of
parole or other court order governing the individual's contact with
the child or the other party.
(6) If the court determines that it will grant custody or
parenting time to a party to a child custody dispute described in
subsection (1), the court's order may also provide for periodic
judicial review of the case at specified times in the court's
discretion to determine whether there are grounds to modify the
order. An order for custody or parenting time with a party
described in subsection (1) may be modified as provided in section
7(1)(c), with consideration for the requirements set forth in this
section. Proper cause to modify a custody order under section
7(1)(c) exists if, after the issuance of the order, a party to the
order or an individual living in a party's household is required to
register as a sex offender for an offense in which the victim was a
child.
(7) Notwithstanding any other provision of law to the
contrary, if a party to a custody dispute is required to register
as a sex offender for an offense in which the victim was a child,
before the court orders mediation or conducts conciliation or a
joint meeting as provided in section 41(1)(e) of the support and
parenting time enforcement act, 1982 PA 295, MCL 552.641, the court
shall conduct a hearing to determine if either of those is
appropriate.
(8) As used in this section, "individual required to register
as a sex offender" means an individual who is required to register
under the sex offenders registration act, 1994 PA 295, MCL 28.721
to 28.736, or a substantially similar law of another jurisdiction.