Bill Text: MI SB0009 | 2015-2016 | 98th Legislature | Introduced
Bill Title: Family law; child custody; requirement to file motion for change of custody order when parent is called to active military duty; modify. Amends sec. 7 of 1970 PA 91 (MCL 722.27). TIE BAR WITH: HB 4071'15, HB 4482'15
Spectrum: Partisan Bill (Republican 3-0)
Status: (Passed) 2015-06-11 - Assigned Pa 0052'15 With Immediate Effect [SB0009 Detail]
Download: Michigan-2015-SB0009-Introduced.html
SENATE BILL No. 9
January 20, 2015, Introduced by Senators JONES, ZORN and SCHUITMAKER and referred to the Committee on Judiciary.
A bill to amend 1970 PA 91, entitled
"Child custody act of 1970,"
by amending sections 7 and 7a (MCL 722.27 and 722.27a), 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. 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. 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. 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 in
active military duty, 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 active military duty, 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.
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, the parent's custodial designee, and the custodial child
shall not be required to be present to consider the application for
stay or extension of a stay. The court shall consider the stay or
extension application 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
extensions of a stay. The parent's duration of deployment, prisoner
of war status, or being missing in action but not declared dead by
a court shall not be considered in a best interest of the child
determination. The parent shall inform the court of the official
active duty end date before or within 30 days after that official
active duty end date, and the stay shall be adjusted to not less
than 90 days after the official active duty end date. 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. Future active
duty military deployments shall not be considered 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. 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.
(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.
(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.
(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.
(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 in active military duty, 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 parenting
time that existed on the date the parent was called to active
military duty, except that the court may enter a temporary
parenting time order if there is clear and convincing evidence that
it is in the best interests of the child. 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, the parent's
custodial designee, and the custodial child shall not be required
to be present to consider the application for stay or extension of
a stay. The court shall consider the stay or extension application
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. The parent
shall inform the court of the official active duty end date before
or within 30 days after that active duty end date, and the stay
shall be adjusted to not less than 90 days after the official
active duty end date. Upon a parent's return from active military
duty, the court shall reinstate the parenting time order in effect
immediately preceding that period of active military duty. If a
motion for change of parenting time is filed after a parent returns
from active military duty, the court shall not consider a parent's
absence due to that military duty. Future active duty military
deployments shall not be considered in a best interest of the child
determination.
