Jessica Woll
Woll & Woll, PC
Terms like “50/50 split” and “you take half and I take half” are often used to reflect a fair and equal division of goods, money or property, but should not apply when it comes to parenting time for children in divorce cases.
However, proposed Michigan legislation HB4691 would revise the manner in which a court determines parenting time—automatically ordering 50/50 shared time between both parents in a divorce case, regardless of the domicile situation before the divorce action.
Unless the court determines by clear and convincing evidence that a parent is unfit, unwilling, or unable to care for the child, HB4691 would amend several provisions of the Child Custody Act of 1970, Public Act 91, which has given the courts the authority to decide parenting time disputes in ways that favored the child, rather than the parents.
Revisions to the Child Custody Act of 1970 include:
• Revising the factors that constitute what are in the best interests of the child;
• Creating a presumption of joint legal custody and substantially equal parenting time — and defining those terms;
• With few exceptions, requires a court to grant joint legal custody and substantially equal parenting time;
• Requires a “clear and convincing” standard of proof to rebut a presumption of established custodial environment or to demonstrate why joint legal custody or substantially equal parenting time should not be granted;
• It requires, instead of allows, a court to consider certain factors when determining parenting time orders;
• For a child at least 16 years of age, gives predominant weight to the child’s preference;
• Prohibits a parent from changing a child’s residence more than 40 miles (instead of 100) from the child’s residence or school unless a court finds that the 40 miles distance negatively impacts the child’s access to parenting time and the child’s involvement in support groups and extracurricular activities.
On the surface, HB4691 appears to be a straightforward solution to an often difficult and tempestuous time for families going through divorce, but in reality, ‘fair’ does not always mean ‘equal’ when it comes to parenting time for children of divorce. What may be ‘fair’ to the parent, may actually be harmful to the child.
There are a host of potentially damaging issues that can occur with a 50/50 parenting time schedule and granting mandatory joint custody, including the challenges for children of creating a home in two different dwellings, the need for a child to spend more time with a particular parent based on age and developmental stages, or the simple matter of logistics for working parents. If the goal is raising emotionally healthy children—which it should be—the chief consideration is whether spending equal time in each parent’s household favors the parents rather than serving the best interests of the child.
In the past 25 years, the tide has turned from giving mothers full custody with visitation rights to fathers, which is a logical extension of the overarching changes in women’s and men’s roles in society today; more women are vested in the workforce and fathers are playing a larger role in hands-on co-parenting and child-rearing. Custody decisions should not be based on a parent’s gender alone, which is what HB4691 aims for in allocating parenting time in 50/50 portions.
It’s time we stop making this an issue of gender and focus on what works best for the child. There is no room for a “one size fits all” solution, here, if we truly want to do what’s best for our children. We need to approach this serious issue from a child-centric perspective. Taking a child-centric perspective means putting our child’s needs above our own. This is not to say that a 50/50 parenting schedule is always contradictory to a child-centric approach—if the factors at hand show that equal parenting time for the children is in their best interest.
We need to remember that divorce is traumatic for children. Children are the powerless bystanders to the demise of their parents’ relationship. Divorce is devastating for children and we need to acknowledge this fact and let our children express their feelings and grieve. Children do want to spend quality time with both of their parents, but not necessarily on a 50/50 basis. If the goal in divorce cases is to remain child-centric throughout the custody and parenting time determination process, HB4691 would impede this goal and be a liability to our children’s well-being.
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Jessica Woll is managing partner and co-founder of Birmingham, Michigan-based divorce and family law firm Woll & Woll, PC
