Bill Text: MI SB0547 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Family law; child custody; child parenting plan; require in child custody disputes. Amends title and secs. 1, 2, 4 & 11 of 1970 PA 91 (MCL 722.21 et seq.) & adds sec. 5a.

Spectrum: Moderate Partisan Bill (Republican 9-2)

Status: (Introduced - Dead) 2011-06-30 - Referred To Committee On Judiciary [SB0547 Detail]

Download: Michigan-2011-SB0547-Introduced.html

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SENATE BILL No. 547

 

 

June 30, 2011, Introduced by Senators MOOLENAAR, GLEASON, GREEN, EMMONS, HILDENBRAND, CASWELL, HUNTER, MEEKHOF, JANSEN, JONES and KOWALL and referred to the Committee on Judiciary.

 

 

 

     A bill to amend 1970 PA 91, entitled

 

"Child custody act of 1970,"

 

by amending the title and sections 1, 2, 4, and 11 (MCL 722.21,

 

722.22, 722.24, and 722.31), the title as amended by 1996 PA 19,

 

section 2 as amended by 2005 PA 327, section 4 as amended by 1998

 

PA 482, and section 11 as added by 2000 PA 422, and by adding

 

section 5a.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

                                   TITLE

 

     An act to declare the certain inherent rights of minor

 

children; to establish a child in relation to his or her parents;

 

to require the establishment of parenting plans in actions

 

involving custody disputes; to prescribe procedures to determine

 

rights and duties to their regarding a child's custody, support,

 

and or parenting time; in disputed actions; to establish rights and

 

duties to provide support for a child after the child reaches the

 

age of majority under certain circumstances; to provide for certain

 

procedure and appeals remedies; and to repeal certain acts and

 

parts of acts.

 

     Sec. 1. This act shall be known and may be cited as the "child

 

parenting plan or custody dispute act". of 1970".

 

     Sec. 2. As used in this act:

 

     (a) "Active military duty" means when active military duty as

 

a reserve unit member or national guard unit member. is called into

 

active military 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.

 

     (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.

 

     (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) "Domestic violence" means that term as defined in section

 

1 of 1978 PA 389, MCL 400.1501.

 

     (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) "Personal protection order" means an order issued under

 

section 2950 of the revised judicature act of 1961, 1961 PA 236,

 

MCL 600.2950.

 

     (k) "Serious emotional abuse" means abuse that would cause a

 

reasonable person to feel terrorized, intimidated, or threatened.

 

     (l) (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.

 

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

 

parent.

 

     Sec. 4. (1) In all actions an action 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 a child's parents have submitted a parenting plan under

 

section 5a, the court shall approve or disapprove the plan. If the

 

court approves of the parenting plan, the court shall adopt the

 

plan and declare all other rights of the child and duties of the

 

parents necessary to protect the child's best interests.

 

     (3) If the parents have not submitted a parenting plan under

 

section 5a, the court shall take any action the court considers

 

appropriate, considering the resources of the parties and any other

 

limiting factors, to assist the parties in developing a parenting

 

plan or enter an order declaring the child's inherent rights and

 

establishing the duties of the parents to implement those rights,

 

including ordering evaluations, requiring the parties to engage in

 

counseling, requiring the parties to engage in alternative dispute

 

resolution, and conducting hearings.

 

     (4) In all actions involving dispute of a minor child's

 

custody or parenting time, neither the court nor the friend of the

 

court shall advocate on behalf of a party or a minor child. In all

 

actions involving dispute of a minor child's custody or parenting

 

time, the child's parents shall represent the child's best

 

interests.

 

     (2) If, at any time in the proceeding, the court determines

 

that the child's best interests are inadequately represented, the

 

court may 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 the probate code of 1939, 1939 PA

 

288, MCL 712A.17d. All provisions of section 17d of chapter XIIA of

 

the probate code of 1939, 1939 PA 288, MCL 712A.17d, apply to a

 

lawyer-guardian ad litem appointed under this act.

 

     (5) (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.

 

     (6) (4) After a determination of ability to pay, the court may

 

assess all or part of the costs and reasonable fees of the a

 

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 a statement of and approves the fee.

 

     Sec. 5a. (1) Except as otherwise provided in subsection (2),

 

in all actions involving a minor child's custody, the parents'

 

obligation to represent the child's best interests shall include an

 

attempt to establish a parenting plan. A parenting plan shall be

 

agreed to by both parents and shall do at least all of the

 

following:

 

     (a) Provide that the child be reared by both the child's

 

father and the child's mother in a manner that closely approximates

 

their rearing of the child before establishing separate domiciles

 

or filing for divorce, unless it is not in the child's best

 

interests.

 

     (b) Provide for the child's care and set forth the authority

 

and responsibilities of each parent with respect to the child. A

 

parenting plan is not required to designate a parent as either the

 

legal or physical custodian of the child.

 

     (c) Encourage nonadversarial dispute resolution rather than

 

rely on judicial intervention to resolve a dispute.

 

     (2) The court shall not require a parent to submit a parenting

 

plan if that parent files a sworn statement stating that he or he

 

is a victim of domestic violence by the other parent. The sworn

 

statement shall be confidential, shall be reviewed only by the

 

court or, during a criminal investigation, by a law enforcement

 

officer or prosecutor, and shall not be a part of the public record

 

in the action involving custody. The sworn statement is exempt from

 

the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

 

     (3) The court shall not approve a parenting plan that requires

 

mutual decision making or designation of an alternative dispute

 

resolution process if the court finds that a parent has engaged in

 

or committed any of the following:

 

     (a) Willful abandonment of the child for an extended period of

 

time or substantial refusal to perform parenting functions.

 

     (b) Physical, sexual, or a pattern of emotional abuse of a

 

child.

 

     (c) Multiple acts of domestic violence or an assault or sexual

 

assault that causes grievous bodily harm or the fear of that harm.

 

     (4) The state court administrative office, at the direction of

 

the supreme court, shall develop a form for use by a parent in

 

completing a parenting plan. The form shall be made available to

 

all parties to actions involving child custody.

 

     (5) If 1 or more parties obtain legal counsel in completing a

 

parenting plan, the parties shall disclose to the court that legal

 

counsel was obtained.

 

     (6) If the court finds that a parent refuses to attend

 

alternative dispute resolution as provided in a parenting plan, the

 

court may assess costs and may award attorney fees and costs to the

 

other parent.

 

     (7) If a parent fails to comply with a parenting plan or a

 

child support order, the other parent's obligations under the

 

parenting plan or the child support order are not affected. The

 

court may hold a parent who fails to comply with a parenting plan

 

in contempt of court.

 

     (8) A parent seeking modification of a parenting plan shall

 

seek the approval of the other parent and use the dispute

 

resolution procedures in the parenting plan. If the parents cannot

 

agree to a modification of the parenting plan, a parent may file a

 

motion with the court that has jurisdiction over the case. The

 

court may assess costs against a parent who does not first seek the

 

approval of the other parent or use the dispute resolution

 

procedures in the parties' parenting plan before filing a motion

 

with the court.

 

     (9) The court shall not modify a parenting plan to change the

 

custodial environment of the child over the objection of a parent

 

unless the modification is warranted under section 7(1)(c).

 

     (10) If the court finds that a motion to modify an earlier

 

parenting plan is brought in bad faith, or a refusal to agree to a

 

modification is made in bad faith, the court may assess attorney

 

fees and court costs against the party acting in bad faith.

 

     (11) Solely for the purposes of other state or federal

 

statutes or other legal requirements that require a designation or

 

determination of legal or physical custody for purposes such as, by

 

way of example and not limitation, tax exemptions or health care

 

benefits, the court may designate in the parenting plan or by

 

separate order a child's legal or physical custodian or custodians.

 

This designation does not affect either parent's rights and

 

responsibilities under the parenting plan or another provision of

 

this act. In the absence of a designation allowed under this

 

section, the parent with whom the child is scheduled to reside the

 

majority of the time shall be considered the child's custodian for

 

those purposes.

 

     Sec. 11. (1) A child whose parental custody is governed by

 

court order or who is the subject of a court-approved parenting

 

plan has, for the purposes of this section, a legal residence with

 

each parent. Except as otherwise provided in this section, a parent

 

of a child whose custody is governed by court order shall not

 

change a legal residence of the child to a location that is more

 

than 100 miles from the child's legal residence at the time of the

 

commencement of the action in which the order is issued.

 

     (2) A parent's change of a child's legal residence is not

 

restricted by subsection (1) if the other parent consents to, or if

 

the court, after complying with subsection (4), permits, the

 

residence change. This section does not apply if the order

 

governing the child's custody grants sole legal custody to 1 of the

 

child's parents.

 

     (3) This section does not apply if, at the time of the

 

commencement of the action in which the custody order is issued,

 

the child's 2 residences were more than 100 miles apart. This

 

section does not apply if the legal residence change results in the

 

child's 2 legal residences being closer to each other than before

 

the change.

 

     (4) Before permitting a legal residence change otherwise

 

restricted by subsection (1), the court shall consider each of the

 

following factors, with the child as the primary focus in the

 

court's deliberations:

 

     (a) Whether the legal residence change has the capacity to

 

improve the quality of life for both the child and the relocating

 

parent.

 

     (b) The degree to which each parent has complied with, and

 

utilized his or her time under, a court order governing parenting

 

time with the child or a parenting plan, and whether the parent's

 

plan to change the child's legal residence is inspired by that

 

parent's desire to defeat or frustrate the parenting time schedule

 

or the parenting plan.

 

     (c) The degree to which the court is satisfied that, if the

 

court permits the legal residence change, it is possible to order a

 

modification of the parenting time schedule or parenting plan and

 

other arrangements governing the child's schedule in a manner that

 

can provide an adequate basis for preserving and fostering the

 

parental relationship between the child and each parent; and

 

whether each parent is likely to comply with the modification.

 

     (d) The extent to which the parent opposing the legal

 

residence change is motivated by a desire to secure a financial

 

advantage with respect to a support obligation.

 

     (e) Domestic violence, regardless of whether the violence was

 

directed against or witnessed by the child.

 

     (5) Each order determining or modifying custody or parenting

 

time of a child or a parenting plan shall include a provision

 

stating the parent's agreement as to how a change in either of the

 

child's legal residences will be handled. If such a provision is

 

included in the order or parenting plan and a child's legal

 

residence change is done in compliance with that provision, this

 

section does not apply. If the parents do not agree on such a

 

provision, the court shall include in the order the following

 

provision: "A parent whose custody or parenting time of a child is

 

governed by this order order/parenting plan shall not change the

 

legal residence of the child except in compliance with section 11

 

of the "Child Parenting Plan or Custody Act of 1970" Dispute Act",

 

1970 PA 91, MCL 722.31.".

 

     (6) If this section applies to a change of a child's legal

 

residence and the parent seeking to change that legal residence

 

needs to seek a safe location from the threat of domestic violence,

 

the parent may move to such a location with the child until the

 

court makes a determination under this section.