Bill Text: MI SB1015 | 2013-2014 | 97th Legislature | Engrossed

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Bill Title: Family law; child custody; requirement to file motion for change of custody or parenting time order when parent is called to active military duty; modify. Amends secs. 7 & 7a of 1970 PA 91 (MCL 722.27 & 722.27a).

Spectrum: Moderate Partisan Bill (Republican 21-3)

Status: (Engrossed - Dead) 2014-09-24 - Referred To Committee On Families, Children, And Seniors [SB1015 Detail]

Download: Michigan-2013-SB1015-Engrossed.html

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SB-1015, As Passed Senate, September 24, 2014

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 1015

 

 

 

 

 

 

 

 

 

 

 

 

 

     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 interest 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 the 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 interest 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 the best interest of the

 

child determination.