In actions involving disputes over custody of a minor, the court is governed by the requirements of MCL 722.21 et seq., known as the Child Custody Act of 1970. This law has been in existence for 47 years with little change. Prior to the act, it was thought that a mother is almost always the best custodial parent. The Child Custody Act of 1970 was designed with the idea of being gender blind. While it is gender blind, it does not start both parties on equal footing and has now grown into a law that encourages parties to fight, establishes burdens of proof pinning the parties against each other.
I have been practicing family law for many years. Some time ago, I noticed a trend. Unless the parties agreed in advance, and that was rare, I had to come out swinging when it came to custody of the children. If I filed a complaint for divorce and asked for 50/50 custody, my client would almost always end up with less than that. This is because almost every Friend of the Court in Michigan has default guidelines when the parties don’t agree. These guidelines start with the understanding that one party will have sole physical custody and the other will have every other weekend and a weekday. The Friend of the Court believes that this is reasonable.
I learned quickly that if I was ever going to get 50/50 custody for my client, I would have to argue for full custody. Now when you have two parents both arguing for full physical custody, the result was almost always the same. The parties who already have issues with each other (otherwise they wouldn’t be getting a divorce) began fighting more and often involved the children in their disputes. Mom would badmouth dad and dad would badmouth mom. Both parties wanted their child to testify against the other and things get messy quick.
You can debate all you want about what the cause of the problem is; is it with the Friend of the Court, is it with the attorneys, is it with the judges, or is it with the parties? After representing many clients with all kinds of judges, opposing counsels and Friend of the Court referees, I have determined that the cause of the problem is the law.
When you have a law that forces parties to fight with each other and try to show that the other parent is not fit to be a parent, you need to change the law to one that encourages these parties to work together.
Several months ago, I was asked to participate in a committee charged with the task of drafting a new custody act. It was presented to the House of Representatives on May 30, 2017. The bill is titled the Shared Custody Act.
Download HOUSE BILL No. 4691
HOW THE NEW LAW WILL WORK:
The new law will presume that an established custodial environment has been created by both parents if the parties reside together at the time the divorce or custody action is filed or if the parents do not reside together but both parents have maintained regular and ongoing contact with the child. Once a presumption of an established custodial environment has been created, the court will order substantial equal parenting time. The presumption can be rebutted if the opposing party shows that it is not in the best interest of the child. If the presumption is rebutted, the court shall determine an appropriate parenting time arrangement.
Despite the existence of an established custodial environment with both parent, the parties can always agree to an arrangement that would deviate from substantially equal parenting time and the court could order non-substantially equal parenting time if it finds that it is not in the best interest of the child under five specific factors which are given great weight. These factors include: (A) Domestic Violence regardless of taking place in front of the child or toward the child, or if it was from a family member or a third party a parent allows to have contact with the child. (B) If the child is likely to be subjected to abuse or neglect. (C) The relationship between the child and a parent is harmed by actions from the other parent. (D) A parent has knowingly made false allegations of abuse, neglect, or domestic violence in a family law proceeding. (E) The child’s strong preference if mature enough with great weight given at age 16.
The Shared Custody Act also makes a major change to the “100-mile rule”. Under the current law, a parent may move the child anywhere so long as it is not more than 100 miles as the crow flies. This can obviously cause problems. The new law will reduce that distance to 40 miles as measured be a vehicles odometer and allows the court to restrict to even less if it would negatively affect the child’s access to parenting time, parental involvement in the child’s school or the child’s ability to access his or her routine support groups and extracurricular activities.
So why is shared parenting time so important? It is the best for the children and the experts agree.
Dr. Richard Warshak, PhD, a prominent American Clinical and Research Psychologist, published the landmark research where 110 experts agreed that Shared Parenting is in the best interest of children.[i] Dr. Linda Nielsen, a Professor of Adolescent and Educational Psychology at Wake Forest University agrees. [ii] Two doctors, Miller and Gottlieb, endorsing Shared Parenting as being in the best interest of children. Dr. Gottlieb speaks powerfully on access being the only way to combat mild to moderate parental alienation. She also says that most courts send the wrong parent to therapy. It is usually the cool, calm and collected one that needs the therapy. The angry parent is just displaying situational anger, which is normal. [iii] Dr. Miller speaks about cases of moderate to severe parental alienation.[iv] Dr. Edward Kruk is Associate Professor of Social Work at the University of British Columbia, specializing in child and family policy. He is the author of The Equal Parent Presumption: Social Justice in the Legal Determination of Parents after Divorce. He states that children who endure a family breakup overwhelmingly want to continue the relationship with both parents and so do the parents. This audio interview is under 30 minutes and well worth listening to.[v]
The Shared Custody Act will safeguard the children’s rights and access to both parents. It will start the parties on the same footing and it will maintain the continuity necessary for a healthy, happy, well-adjusted and stable child.
Download HOUSE BILL No. 4691
[i] https://nationalparentsorganization.org/about-npo/npo-news/21611-february-25th-2014
[ii] http://www.acfc.org/acfc/assets/documents/Articles/Nebraska%20Lawyer%20Magazine.pdf
[iii] https://www.youtube.com/watch?v=4N1sj8zOtXU&feature=share
[iv] https://www.youtube.com/watch?v=5fgRJh26Jho&feature=youtu.be&list=LLlo76zZrx7mXsYV1xxBObsg
[v] http://www.dadsontheair.com.au/shows/the-equal-parent-presumption.html?utm_source=dlvr.it&utm_medium=facebook
Linda Wright
August 14, 2017 12:36 PMExcellent factual synopsis of the Shared Parenting Act. It is refreshing to see the truth regarding this issue and HB 4691 summarized in such an accurate presentation. So many others, including some attorneys, judges, and other groups are misrepresenting the structure of this bill and misleading those interested parties with false information by substituting “automatic” and “mandated” in place of the actual premise of PRESUMPTION.Those who seek to present their opposition utilizing intentional inaccuracies are quite frankly…an embarrassment.
Raven Kunesh
August 22, 2017 1:42 PMHello. I was wondering if this new law passes if it will help parents with cases already established? I have Joint Legal Custody but would like to be granted Joint Physical Custody so I could actually actively participate in the school weeks with my daughter. Thank you!
Theodore Reavis
September 19, 2017 5:41 PMThis should been like that my kids are grown and I miss a lot I wanted to be in there lives but their mother refuse me to help raise them but she kept the child support on me now my license are suspended. All she have to do is make false allegations and the father loose custody
Mason Platzke
September 19, 2017 5:58 PMThis is a long time waiting for something like this to be put in place how can you get this to apply to a case in Maryland that is currently standing with court orders
Michael Johnson
September 19, 2017 6:21 PMDo u know of any custody law reform in the state of PA?
Jeff Stolzenburg
September 19, 2017 6:47 PMSure wish you were in Ohio! If you ever know of an Attorney who can do what you’re doing down here, I’d be glad to help in any way possible. I’ve yet to find one (at least in Dayton) who will do such a thing.
Two Thumbs Up for Helm Law!
Sharon Ballinger
September 20, 2017 3:57 AMHow can I help you get this bill passed? I’m a grandparent who has watched she sets of children go through the wrenching process of unbalanced that I do custody and I wish to see it end.
Michael Smith
September 21, 2017 5:41 PMI live in Wisconsin, where shared placement exists. There are still many hurdles. I have found the biggest hurdle to be judges, child psychologists, counselors, court commissioners, GALs, lawyers simply unwilling to challenge the status quo – which is “mom”. There is even a “flat-earth” child psychologist, a peer of Warshak, named Ken Waldron (Monona Mediation). Dr. Waldron has come right out and said he doesn’t believe in “equal placement” and that fathers are “self-centered” (his words) for wanting equal placement. The law is only one of many factors, imho, that need change.