Some time ago, Rep. Jim Runestad [R-White Lake] introduced legislation -known as HB 4141– that would create a presumption of joint custody in any dispute between parents. Rebutting this presumption will require clear and convincing evidence that a parent is, “unfit, unwilling, or unable to care for the child.” Parental termination proceedings, for example, would render a person an “unfit” parent. Unless one parent is deemed unfit, joint custody is mandated.
In addition to a presumption of joint custody, the bill proposes a parenting schedule featuring specific and substantially equal periods of parenting time with each parent. The bill also calls for the parenting sessions to alternate; to wit, the so-called week-on-week-off schedule, or the 2-2-3 schedule featuring long 3-day weekends for each parent. Joint custody, the bill confirms, does not obviate the requirement of child support.
While appearing fair-minded at first blush, this innovative bill has attracted much opposition from professional groups. For example, the Oakland County Bar Association registered its opposition in a formal position paper which states:
Mandatory equal physical custody would make the best interest of the child factors irrelevant and treat all families exactly the same. It would require that both parents live in the same school district or travel distances for schooling, require the children to move frequently from house to house regardless of the child’s preference and allow any parent, including convicted felons, to demand equal parenting time. Requiring a standard of ‘unfitness’ to be found by ‘clear and convincing evidence’ directly contradicts nearly all other provisions of the Child Custody Act. This bill again attempts to remedy a perceived problem which, in fact, does not exist. The current custody statute(s) and subsequent case law clearly permits a court to determine when it is in the best interest of a child that joint custody, or equal parenting time, be ordered.
This bill focuses on the needs of the parent instead of the needs of the children.
Thus, according to the OCBA and the local family law bar, custody and parenting time cases should continue to be decided on a case-by-case basis. This also was the view of the two recently retired family court judges, Joan E. Young and Elizabeth Pezzetti, based on our firm’s frequent appearances before both jurists.
Languishing in the House judiciary committee over the past two years, it does not look like the bill will acquire the requisite traction to amend the Child Custody Act. This term, however, Rep Runestad is seeking to rename this law the “Shared Parenting Act”. Sponsors of the measure claim that the new law would end competition and alienation between parents by putting the children first.
The family law bar again disagrees. Wayne Family Court Judge Richard Halloran, Chairperson of the State Bar of Michigan’s Family Law Section, testified in opposition to the measure when testimony was taken in committee back last September. Other family court professionals and thought leaders, on the other hand, see the measure gaining momentum.
A resolution was passed at the conclusion of the testimony acknowledging the harm caused to the minor children when a parental relationship is disrupted by the other parent. This is known in the industry as parental alienation.
If you or a loved one are involved in a custody dispute, contact our office for a free consultation to discuss your options.