There’s a new battle brewing over child custody in Michigan. House Bill No. 4691 would make significant changes to how we decide Michigan child custody cases. Some of these changes are good and some of them are bad. Here are the significant changes:
Presumption of Equal Custody and Parenting Time
The biggest change in the bill is that Michigan moves from the best interests of the child as the standard to a presumption that a child needs equal time with both parents. The court should try to make parenting time as equal as possible, rather than look at all of the factors to determine what’s best in each circumstance.
The practical effect is that judges wouldn’t have as much wiggle room to do what they want. The law becomes more strict, and a judge is going to have to work harder if they don’t want to follow the law. What I’m going to say here isn’t popular speech in family law circles, but here it is: The sad truth is that Michigan’s current law is so vague and open to interpretation that many custody decisions fall on the personal philosophies of the judge rather than on the true best interests of the child.
The proposed bill changes that by shifting to equal custody and parenting time in most cases. Will this create some false positives, where children end up in equal situations where it would be better for them not to be? Yes. However, will it also fix many false negatives, where children end up seeing one parent very little because the judge’s personal life experience or downright bias prevents them from applying the law in a fair manner? Yes.
The truth is that judges can manipulate the custody factors to rule however they want to. For example, factor (c), the ability to provide for a child’s material needs, I once had a judge rule that a parent making $18,000 and a parent making $50,000 were both equally able to provide for a child’s material needs. Of course, the parent making $18,000 ended up with custody. Though they wouldn’t ever admit it, some, but not all, judges decide what the outcome should be in a case and then they write up an analysis of the best interests factors that reaches that conclusion. Where judges have wildly differing personal philosophies and biases, this creates wide swings in family court rulings.
No matter how we draft the law – presuming equal parenting time or not — there are going to be situations where a child’s situation doesn’t reflect their best interests. That may be because of the constraints of the law, manipulation of the law by a parent, or biases or indifference on the part of the court. Because we know that study after study indicate that children with shared parenting do better in every measure, the mistakes should error on the side of caution, and that caution is in favor of shared parenting.
A presumption of shared parenting time also does a lot to reduce court battles over the children. If equal custody and parenting time is the likely outcome, parents are more likely to agree to it without a battle. In addition, this also ties a judge’s hands when it comes to parenting time. If the goal is as equal as possible, each parent should receive 182.5 overnights per year except when there are extenuating circumstances or it’s impractical because the parents live too far apart. But, where this law imposes an – as equal as possible – requirement, there’s not a lot of leverage to argue for even one more overnight.
In one divorce case I handled, I represented a father who agreed to allow the mother to have the children during the school year. The mother readily agreed, but then wanted half the summers and school breaks as well. The mother’s attorney looked me in the eye and said that anything less and the mother would receive “so little time” with the children. Of course, we offered to switch places, and the mother balked at that idea.
This new bill resolves a situation like that quickly and in favor of the parent agreeing to give up the school year. If one parent is “school” parent, the other parent is “summer and breaks” parent. There’s no allowing the “school” parent to demand an equal share of the breaks under a best interests of the child theory. This should resolve parenting time disputes much more quickly because the overriding question is how to get to as equal as possible, and that’s a much easier question than what’s vaguely “best,” with each party defining that term as they see fit.
There’s another wrinkle to this issue: Parents who don’t have primary custody in Michigan are usually the higher-earning parent. Switching to a presumption of shared custody means less child support exchanged between parents. That means lower fees for the courts who impose the orders. So it would be interesting to see if courts would willingly apply this new bill as it’s written when the practical effect is that their budgets are going to take a hit. You can place your bets on that.
This new bill cuts down on a lot of custody controversy. In most cases, custody and parenting time becomes a math problem rather than haggling over vague terms and trying to impress the personal biases of family court judges.
Verdict: Equal parenting presumptions are VERY GOOD.
Change in the 100-mile rule
As it is now, either parent can move up to 100 miles away in shared custody cases. To put that in perspective, it’s 88 miles from Traverse City to Indian River and a drive time of one hour and forty minutes. It’s about the same drive to Big Rapids. By the current logic, a child in Grand Traverse Schools could move with a shared-custody parent and have three hours in the car commuting to school each day, no questions asked by the court.
Forty miles seems much more realistic. A parent in Beulah could move as far as Traverse City but not much farther. A forty-mile rule still allows a parent downstate to move anywhere within a major metropolitan area.
Although this may seem like a hardship for parents wanting to relocate for work, in my experience, the vast majority of relocation attempts are for the romantic relationships of the parents. Usually the logic flows from the parent wanting to move that the new spouse/girlfriend/boyfriend is so great that the parent should be allowed to significantly upend the child for the child’s (read parent’s) own good. For now, parents are limited to applying that faulty logic to a 100-mile radius.
It’s true that relocation restrictions on parents with shared custody can be a hardship. It would be interesting to perform an economic study on the long-term effects of this restriction on parents. Do they suffer significantly reduced outcomes because they’re unable to follow work opportunities? Even so, if we didn’t have the relocation restriction, parents would use work and romantically-motivated relocation to manipulate custody arrangements all the time. If it’s a hardship, it’s a necessary hardship.
Verdict: Forty-mile rule is GOOD.
Reduced Child Support to Account for Second-Home Expenses
The bill creates a rule that allows the court to lower child support in cases where the payer has inadequate resources to both provide a home for the child on their own parenting time and pay support. The current Michigan Child Support Formula doesn’t take second-home expenses into account at all. Of course, providing even a basic home for a child is a five-figure need, and children in shared parenting situations need two homes, not one. The child support formula ignores this reality and takes from the paying parent as though they don’t need a home of their own. This provision of the bill allows the court to reduce child support because of this reality.
In practice, this already happens. A bit of honesty here — I’ve only ever seen it happen in the mother’s favor — I’ve had several cases where an older child wants to live with the father, and the mother and the FOC agree that the child may live with the father on the condition that the father waive child support from the mother. All this bill does is codify what the FOCs are already doing, and hopefully putting it out in the open will spur the courts to apply it evenly to both mothers and fathers.
Verdict: Reduced child support to account for dual-home expenses is GOOD.
(As an aside, the court could do even better to simply modify the child support formula to account for second home expenses for all parents.)
A Deployed Parent May Choose a Third Party to Exercise Their Parenting Time
The bill allows a deployed parent to designate a third party to use their parenting time while they’re deployed. This could be a parent, new spouse or even a significant other or neighbor. The good is that it allows the children to maintain their routine in the deployed parent’s household. The bad is that this effectively creates a situation where a parent is forced to co-parent with a non-parent who might even be a stranger.
The courts could do better to make a law that says that a deployed parent immediately resumes the parenting schedule upon return, and the court shall create a parenting-time schedule during the period of deployment that both acknowledges the child’s interest in continuing a routine and contact with the deployed parent’s household, while acknowledging that parents, and not third parties, are the appropriate caretakers for children.
Verdict: Deployment parenting designation is MIXED.
Child Has Input at Age 16
How quickly can this one get to the court of appeals for interpretation? This change would give a child’s opinion “predominant” weight in a custody determination. Of course the statute doesn’t define predominant, so we turn to the dictionary definition. Predominant means “present as the strongest or main element.” In other words, at age sixteen, a child gets to choose what parent they want to live with primarily unless there are extenuating circumstances like domestic violence or parental alienation.
In many Northern Michigan courts, there’s an unwritten rule that children aren’t allowed to testify in family court. Often, children are the only witness to what’s going on in a parent’s home. If the child can’t testify, the other parent has no evidence to present to the court that a change is appropriate, no matter how dire the need for the change.
This fixes that. The child can just go in and tell the judge like it is and that should be all the judge needs to hear.
Verdict: Child chooses at 16 is GOOD.
No Changes Without Consent
This provision of the new law prevents a parent from making a change to a child’s school or other big decisions until the parents are able to agree. Basically, this means no child can ever change anything unless both parents agree. The parents no longer have a recourse to the court to hear the evidence and determine the best interests of the child.
This creates a quick race to the bottom. A parent can just say no for as long as they have to in order to manipulate the other parent into whatever they want in return for their cooperation. This also lets the “no” parent win by default by simply refusing to address the matter until the school year, event or activity has come and gone. This measure allows a parent to refuse to allow their child to participate in a single enrichment activity for their entire childhood. And somehow that’s better public policy for Michigan than making a court referee hear evidence about whether or not little Kaden should be in the school band? Not so much.
There’s not a lot to be gained here, other than for court workers who want clean dockets. Sometimes, kids need change. Sometimes, parents don’t want to change. A parent might refuse change because they can’t see what’s best for the child or just because they want to be the contrarian to the other parent. Either way, kids need someone to step in and do better than that.
Verdict: No changes without agreement is VERY BAD.
You Can’t Take the Child and Run
A couple heads towards divorce. One parent promises the other that they’ll never see the kids again. All of a sudden, the other parent finds themselves accused of domestic violence and the subject of a personal protection order against them and the children. Then, the accusing parent runs to the family court to get exclusive possession of the marital home because of the PPO.
By the time the court hears the custody matter, the second parent hasn’t seen the children in many months. Of course, you can’t upset the children’s routine now!!! Screams the lawyer for the accusing parent. The second parent never had a chance, even when the domestic violence charges are unfounded.
What I just described above is a page out of the full-custody playbook. I’m not saying it occasionally happens in courts throughout Michigan, I’m saying it happens a lot. People do it because it works. Sometimes it’s legit and many times it’s not.
This new family law bill fixes that. It gives each parent ninety days after filing for divorce to demand a custodial environment. If they do, the court must start with the presumption of equal custody and parenting time. This provision completely guts a parent’s efforts to win custody by legal manipulation.
Verdict: Custodial environment demand is VERY GOOD.
…and if you have family law needs, please contact us. We represent clients in the following counties: Antrim, Benzie, Grand Traverse, Kalkaska, Leelenau, Manistee and Wexford. We offer clients honest and compassionate representation.