Mandated joint custody bill is getting an icy reception
Legislation that would require courts to award joint custody in divorce cases is being criticized by trial judges and family-law practitioners as being ill-conceived and not in the best interests of Michigan children.
House Bill 4141 would mandate that trial courts order joint custody unless there is clear and convincing evidence that a parent is unfit, unwilling or unable to care for the children.
Trial judges assert that HB 4141 eliminates their discretion in custody and parenting-time cases, while practitioners say the bill really protects what is best for parents — not for children.
HB 4141 is sponsored by Rep. Jim Runestad, R-White Lake and was introduced earlier this year. A spokesperson for Runestad has reportedly said the goal of the legislation is to let children spend time with both parents and to “keep families together as much as possible.”
However, trial judges assert that HB 4141 would basically toss out the Child Custody Act’s best-interest factors, which judges consider when determining custody arrangements. Currently, judges can assess parent credibility and the circumstances of each case when devising an arrangement that is in the children’s best interests.
But according to judges, HB 4141 would all but eliminate the discretion the judiciary now has under the Child Custody Act’s best-interest analysis.
The State Bar of Michigan Family Law Section also opposes HB 4141. According to the section, the bill “makes the best interests of the child irrelevant and determines that only one type of parenting arrangement is available to all Michigan families.” The section also says that equal parenting time would require some children to switch school districts every six months and the legislation “benefits bad parents at the expense of good parents and children.” Under the proposal, “good parenting is irrelevant, the children's feelings are irrelevant, and bad co-parenting behavior is irrelevant,” the section asserts.
Other criticisms of HB 4141 include:
“Parental unfitness” is one reason in HB 4141 for not awarding joint custody, and the bill references the juvenile code for making this determination. According to trial judges, mixing domestic relations standards with juvenile standards will create confusion and problems.
Most custody cases settle out of court. The cases that do go to trial often involve hostility between the parties, which means they are typically inappropriate for a joint custody arrangement.
Parents may want to use HB 4141 as a way to gain leverage that an otherwise uncontested custody action might not provide, resulting in more contested custody actions.
HB 4141 has been referred to the House Committee on Families, Children and Seniors.
The family-law bar is closely watching the measure for any movement in committee, especially now that the Legislature has completed its road-funding tasks.
If the proposal does not move forward this legislative term, Runestad’s spokesperson has indicated it will likely be reintroduced in the future.