David Helm
Helm Law
In response to “Divorce attorney voices opposition to bill mandating equal parenting time” (Detroit Legal News, June 29, 2017), I would like to explain how the new law would really work.
There are many problems with the current child custody act. First, it is unevenly enforced across the state so much so that the outcome of a child custody dispute turns more on the county and judge then it does on the best interest factors. Second, it pits parents against each other for a winner take all contest leaving the child caught in the middle. The current law throws 12 factors in the air and then the courts tell the parties whoever grabs the most factors, wins the kids. This bill is designed to take the position that unless shown otherwise, a parent who has been involved in their child’s life will continue to be.
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 not residing together, both parents have maintained regular and ongoing contact with the child.
The presumption can be rebutted if the opposing party shows by preponderance of evidence that it is not in the best interest of the child under the best interest factors under Section 3.
If the presumption is rebutted, the court shall determine custody based on the best interest of the child and use Section 7a to determine an appropriate parenting time arrangement.
If the presumption is not rebutted, the court shall order joint legal custody and substantially equal parenting time.
Despite the existence of an established custodial environment with both parents and the best interest factors being equal to both parties, non-substantially equal parenting time and even no parenting time can be awarded if one of the following are shown:
• The parties agree to an arrangement that would deviate from substantially equal parenting time;
• 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;
• If the child is likely to be subjected to abuse or neglect;
• The relationship between the child and a parent is harmed by actions from the other parent;
• A parent has knowingly made false allegations of abuse, neglect, or domestic violence in a family law proceeding;
• The child’s strong preference if mature enough with great weight given at age 16.
Prior to drafting this bill, we consulted with many experts and professionals in the field who all agree that across all demographics, regardless of the ability for the parents to cooperate, substantially equal parenting time with both parents allows a child have a healthy, happy, well-adjusted, and more stable life.
The bill does require the court to use specific factors when making parenting time decisions. This will prevent the court from determining cases ad hoc, but would require specific analysis of specific factors.
Children have always had a say in the system when they reach an age of maturity. This bill refocuses on the realities facing families today. 40 years ago, children were not involved in all the extracurricular activities they are today. When a child reaches the age of 16, they can be in as many as five different clubs, organizations, and sports. This is also the age when most children start driving. So, if that child drives himself to soccer and has a match early the next morning, that child should be able to decide that because Mom’s house is closer to school, or Dad’s house is closer to the match, which house he wants to stay at that night.
The residence change is 80 miles not, 40.
The focus is still on the children, not the parents. Just because the net result might be granting more equal time, does not mean the focus is on the parents.
This is not a mandate for substantially equal parenting time. This new law will simply refocus the starting point from what almost all Friend of the Courts see as reasonable parenting time and the default starting point (sole physical to one parent and the other has every other weekend and a weekday) to a presumption of substantially equal parenting time with factors to determine if that is in the child’s best interest.
––––––––––––––––––––
Subscribe to the Legal News!
http://legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available
