HB-5471, As Passed House, June 23, 2004
SUBSTITUTE FOR
HOUSE BILL NO. 5471
A bill to amend 1970 PA 91, entitled
"Child custody act of 1970,"
by amending sections 4 and 7a (MCL 722.24 and 722.27a), section 4
as amended by 1998 PA 482 and section 7a as amended by 1996 PA
19.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 4. (1) In all
actions an action involving dispute of
2 a minor child's custody, the court shall declare the child's
3 inherent rights and establish the rights and duties as to the
4 child's custody, support, and parenting time under court order or
5 a court-approved parenting plan in accordance with this act.
6 (2) When the parents of a child establish a parenting plan
7 under section 7a, the court shall declare that plan as the
8 child's inherent rights under subsection (1).
9 (3) (2) If,
at any time in the proceeding, the court
1 determines that the child's best interests are inadequately
2 represented, the court may appoint a lawyer-guardian ad litem to
3 represent the child. A lawyer-guardian ad litem represents the
4 child and has powers and duties in relation to that
5 representation as set forth in section 17d of chapter XIIA of the
6 probate code of 1939, 1939 PA 288, MCL 712A.17d. All provisions
7 of section 17d of chapter XIIA of the probate code of 1939, 1939
8 PA 288, MCL 712A.17d, apply to a lawyer-guardian ad litem
9 appointed under this act.
10 (4) (3) In
a proceeding in which a lawyer-guardian ad litem
11 represents a child, he or she may file a written report and
12 recommendation. The court may read the report and
13 recommendation. The court shall not, however, admit the report
14 and recommendation into evidence unless all parties stipulate the
15 admission. The parties may make use of the report and
16 recommendation for purposes of a settlement conference.
17 (5) (4) After
a determination of ability to pay, the court
18 may assess all or part of the costs and reasonable fees of the
19 lawyer-guardian ad litem against 1 or more of the parties
20 involved in the proceedings or against the money allocated from
21 marriage license fees for family counseling services under
22 section 3 of 1887 PA 128, MCL 551.103. A lawyer-guardian ad
23 litem appointed under this section shall not be paid a fee unless
24 the court first receives and approves the fee.
25 Sec. 7a. (1) Parenting time shall be granted in accordance
26 with the child's
best interests. of the child. It is presumed
27 to be in the child's
best interests of a child for the child to
House Bill No. 5471 (H-3) as amended June 23, 2004
1 have a strong relationship with both of his or her parents.
2 Except as otherwise provided in this section, parenting time
3 shall be granted to a parent in a frequency, duration, and type
4 reasonably calculated to promote a strong relationship between
5 the child and the parent granted parenting time.
6 (2) With the approval and at the direction of the supreme
7 court, the state court administrative office shall develop and
8 make available a form for use by a parent in completing a
9 parenting plan. The form shall be made available by the court [to the
10 parents of the minor child. ] The form shall indicate
11 the subject matter to be addressed in a parenting plan and shall
12 contain a sworn statement signed by each parent that the proposed
13 parenting plan is proposed in good faith. A form developed under
14 this subsection shall contain notice that either party may obtain
15 legal counsel.
16 (3) If the parents create a parenting plan as provided in
17 subsection (2), the parenting plan shall be filed with the court
18 before a hearing on or determination of issues regarding a child[.
19 ]
20 (4) (2) If
the child's parents of a child agree on
21 parenting time terms, the court shall order the parenting time
22 terms unless the court determines on the record by clear and
23 convincing evidence that the parenting time terms provided in
24 subsections (2) and (3) are not in the child's best interests.
25 of the child. (3) A child has a right to parenting time with a
26 parent unless it is shown on the record by clear and convincing
27 evidence that it would endanger the child's physical, mental, or
1 emotional health.
2 (5) (4) Notwithstanding
other provisions of this act, if a
3 proceeding regarding parenting time involves a child who is
4 conceived as the result of acts for which 1 of the child's
5 biological parents is convicted of criminal sexual conduct as
6 provided in sections 520a to 520e and 520g of the Michigan penal
7 code, Act No. 328 of
the Public Acts of 1931, being sections
8 750.520a to 750.520e
and 750.520g of the Michigan Compiled Laws
9 1931 PA 328, MCL 750.520a to 750.520e and 750.520g, the court
10 shall not grant parenting time to the convicted biological
11 parent. This subsection does not apply to a conviction under
12 section 520d(1)(a) of Act
No. 328 of the Public Acts of 1931,
13 being section 750.520d
of the Michigan Compiled Laws the
14 Michigan penal code, 1931 PA 328, MCL 750.520d. This subsection
15 does not apply if, after the date of the conviction, the
16 biological parents cohabit and establish a mutual custodial
17 environment for the child.
18 (6) (5) Notwithstanding
other provisions of this act, if an
19 individual is convicted of criminal sexual conduct as provided in
20 sections 520a to 520e and
520g of Act No. 328 of the Public Acts
21 of 1931 the Michigan penal code, 1931 PA 328, MCL 750.520a
to
22 750.520e and 750.520g, and the victim is the individual's child,
23 the court shall not grant parenting time with that child or a
24 sibling of that child to that individual, unless both the child's
25 other parent and, if the court considers the child or sibling to
26 be of sufficient age to express his or her desires, the child or
27 sibling consent to the parenting time.
1 (7) (6) The
court may consider the following factors when
2 determining the frequency, duration, and type of parenting time
3 to be granted:
4 (a) The existence of any
special circumstances or needs of
5 the child.
6 (b) Whether the child is a nursing child less than 6 months
7 of age, or less than 1 year of age if the child receives
8 substantial nutrition through nursing.
9 (c) The reasonable likelihood of abuse or neglect of the
10 child during parenting time.
11 (d) The reasonable likelihood of abuse of a parent resulting
12 from the exercise of parenting time.
13 (e) The inconvenience to, and burdensome impact or effect on,
14 the child of traveling for purposes of parenting time.
15 (f) Whether a parent can reasonably be expected to exercise
16 parenting time in accordance with the court order.
17 (g) Whether a parent has frequently failed to exercise
18 reasonable parenting time.
19 (h) The threatened or actual detention of the child with the
20 intent to retain or conceal the child from the other parent or
21 from a third person who has legal custody. A custodial parent's
22 temporary residence with the child in a domestic violence shelter
23 shall is not be construed as evidence of
the custodial
24 parent's intent to retain or conceal the child from the other
25 parent.
26 (i) Any other relevant factors.
27 (8) (7) Parenting
time shall be granted in specific terms
1 if requested by either party at any time.
2 (9) (8) A
parenting time order may contain any reasonable
3 terms or conditions that facilitate the orderly and meaningful
4 exercise of parenting time by a parent, including 1 or more of
5 the following:
6 (a) Division of the responsibility to transport the child.
7 (b) Division of the cost of transporting the child.
8 (c) Restrictions on the presence of third persons during
9 parenting time.
10 (d) Requirements that the child be ready for parenting time
11 at a specific time.
12 (e) Requirements that the parent arrive for parenting time
13 and return the child from parenting time at specific times.
14 (f) Requirements that parenting time occur in the presence of
15 a third person or agency.
16 (g) Requirements that a party post a bond to assure
17 compliance with a parenting time order.
18 (h) Requirements of reasonable notice when parenting time
19 will not occur.
20 (i) Any other reasonable condition determined to be
21 appropriate in the particular case.
22 (10) (9) During
the time a child is with a parent to whom
23 parenting time has been awarded, that parent shall decide all
24 routine matters concerning the child.
25 (11) (10)
Prior to Before entry of a temporary order, a
26 parent may seek an ex parte interim order concerning parenting
27 time. If the court enters an ex parte interim order concerning
1 parenting time, the party on whose motion the ex parte interim
2 order is entered shall have a true copy of the order served on
3 the friend of the court and the opposing party.
4 (12) (11) If
the opposing party objects to the ex parte
5 interim order, he or she shall file with the clerk of the court
6 within 14 days after receiving notice of the order a written
7 objection to, or a motion to modify or rescind, the ex parte
8 interim order. The opposing party shall have a true copy of the
9 written objection or motion served on the friend of the court and
10 the party who obtained the ex parte interim order.
11 (13) (12) If
the opposing party files a written objection
12 to the ex parte interim order, the friend of the court shall
13 attempt to resolve the dispute within 14 days after receiving
14 it. If the matter cannot be resolved, the friend of the court
15 shall provide the opposing party with a form motion and order
16 with written instructions for their use in modifying or
17 rescinding the ex parte order without assistance of counsel. If
18 the opposing party wishes to proceed without assistance of
19 counsel, the friend of the court shall schedule a hearing with
20 the court that shall be held within 21 days after the filing of
21 the motion. If the opposing party files a motion to modify or
22 rescind the ex parte interim order and requests a hearing, the
23 court shall resolve the dispute within 28 days after the hearing
24 is requested.
25 (14) (13) An
ex parte interim order issued under this
26 section shall contain the following notice:
27 NOTICE:
1 1. You may file a written objection to this order or a
2 motion to modify or rescind this order. You must file the
3 written objection or motion with the clerk of the court within 14
4 days after you were served with this order. You must serve a
5 true copy of the objection or motion on the friend of the court
6 and the party who obtained the order.
7 2. If you file a written objection, the friend of the court
8 must try to resolve the dispute. If the friend of the court
9 cannot resolve the dispute and if you wish to bring the matter
10 before the court without the assistance of counsel, the friend of
11 the court must provide you with form pleadings and written
12 instructions and must schedule a hearing with the court.