SB-0009, As Passed Senate, March 26, 2015

SUBSTITUTE FOR

SENATE BILL NO. 9

A bill to amend 1970 PA 91, entitled

"Child custody act of 1970,"

by amending sections 2, 7, and 7a (MCL 722.22, 722.27, and

722.27a), section 2 as amended by 2005 PA 327, section 7 as amended

by 2005 PA 328, and section 7a as amended by 2012 PA 600.

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.~~that

term as defined in section 101 of the servicemembers civil relief

act, 50 USC 511, except that "active duty" includes full-time

national guard 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.

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) "Deployment" means the movement or mobilization of a

servicemember to a location for a period of longer than 60 days and

not longer than 540 days under temporary or permanent official

orders as follows:

(i) That are designated as unaccompanied.

(ii) For which dependent travel is not authorized.

(iii) That otherwise do not permit the movement of family

members to that location.

(iv) The servicemember is restricted from travel.

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

child's natural or adoptive parent.

(g) ~~(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.

(h) ~~(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.

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

child.

(j) ~~(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.

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

parent.

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.

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. 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~~ while 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~~ active duty status 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.

(3) As provided in the servicemembers civil relief act, 50 USC

501 to 597b, 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 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, 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 not be considered in

making a best interest of the child determination.

(4) The parent shall inform the court of the deployment end

date before or within 30 days after that deployment end date. Upon

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 of the child determination. Future deployments shall not

be considered in making a best interest of the child determination.

(5) If the deploying parent and the other parent share

custody, the deploying parent must notify the other parent of an

upcoming deployment within a reasonable period of time.

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 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, 1931 PA 328, 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 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 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 desires,

the child or sibling consent to the parenting time.

(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.

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.

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

requested by either party at any time.

(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.

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.

(9) Except as provided in this subsection, a parenting time

order shall 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.

(10) 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) 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) 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) 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) 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.

(15) As provided in the servicemembers civil relief act, 50

USC 501 to 597b, 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 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, certified to be true under penalty of perjury.

The same conditions for the initial stay apply to applications for

an extension of a stay.

(16) The parent shall inform the court of the deployment end

date before or within 30 days after that deployment end date. Upon

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 not be considered in making a best interest of

the child determination.

(17) If the deploying parent and the other parent share

custody, the deploying parent must notify the other parent of an

upcoming deployment within a reasonable period of time.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.