James P Ryan, family lawyer from Plymouth, Michigan reminds Michigan family lawyers that the push is on again for mandatory joint custody. He provides a link to pending legislation.
Here are comments from ranking members of the State Bar of Michigan Family Law Section:
From Scott Bassett: Family Law Appellate Lawyer:
The bill not only creates a presumption for joint physical (substantially equal time) and joint legal custody (decision making), but also provides that the presumption may be rebutted only by clear and convincing evidence of parental unfitness or unwillingness to care for the child, or where a parent moves out of the child's school district. It isn't even a "best interests" test. This would be a major change (for the worse) in the way we view child custody issues. When the child's best interests are no longer paramount, aren't we treating kids as the property of their parents?
Also, it provides for mandatory mediation of disputes where a parent moves outside the school district where the child attended the previous year. This ignores the protections built into the mediation court rule and DRAA concerning domestic violence cases and how an imbalance of power can impact the process. It also places far too much emphasis on school attendance to the exclusion of other important considerations. What about the economic reality that a parent, upon separation, is often unable to afford a residence in the child's prior school district. If the residence was paid for by the incomes of both parents (as if often the case), this provision defies logic and it totally ignorant of the way real families operate post-separation.
I hate to start the day sounding so cranky, but this is just plain stupid. There may be an increasing number of families where parenting is shared equally by parents pre-divorce and preserving that post-divorce makes sense. That can be handled case-by-case if the evidence supports it. But creating a system that presumes all families operate this way, absent clear and convincing evidence (of unfitness!), is foolish.
P.S. Our trial and appellate courts have become adept at recognizing that custody and parenting time are not entirely separate concepts. Instead, they describe ranges along a continuum of parent-child contact and responsibility. If we already have the presumption in MCL 722.27a(1) that states (Jim, remember when we wrote this back in '87?):
(1) Parenting time shall be granted in accordance with the best interests of the child. It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents. Except as otherwise provided in this section, parenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.
Why, then, do we need a horribly drafting presumption for joint custody. Courts are already obligated by statute to give each parent sufficient time to promote a strong relationship.
From Alex Cave, Referee, Washtenaw County FOC
I am especially fond of section 3 which removes the necessity for a court to consider whether one party has browbeaten the other into signing a joint custody arrangement. This never happens, of course. Under this proposed legislation, it would appear that the court would lose all discretion to look behind the written stipulation and/or consider what is best for the minor child/ren. Oh, well – it was such a bother anyway.
And, of course, there seems to be no solution to the current problem of preschool children who had no prior year in school. (Gee, does preschool count???) Maybe the legislation can be amended to add a simple proviso that the child MUST attend in the wealthier school district. That should unburden the judiciary from having to consider the best interests of ANY child. Oh, right. The legislature might be working on a new school funding equalization package. Perhaps a better use of time, in my humble opinion.
Another point of view is heard from Craig Feringa, family lawyer in Mount Clemens:
The reason why all the mandatory joint custody leg. keeps being proposed is that there is a large segment of parents who believe the system is unfair. The application of the statute is inconsistent. Each judge, referree, attorney, parent, etc, has a different opinion as to what type of parenting time schedule is "meaningful". Obviously some believe that everyother weekend is "reasonable" and will promote a strong relationship. I'm not sure how easy it is to maintain a strong relationship with a child if you put them to bed only 4 times a month. Having said that I don't have an answer as what every parenting time plan should be ... its hard as hell to make it work out for the kids everytime. I've frequently wished for the ability of the system to provide that the kid's home stays the same and the parents moving in and out ... the kids keep the same school, friends, pets, toys, clothes, room, bed, etc. Support would be based on supporting the child in that home and not on supporting the other parent who has no responsibility to account for the money. I think that the section should recognize the need to review the law regarding custody, parenting time and support and address some of the issues that won't go away.
In response, Scott Bassett counters with these thoughts:
How about we tie this proposal to one that will substantially increase the economic fortunes of the lower income parent who often receives primary physical custody? This can be done through a change in the child support formula, more appropriate (and frequent) spousal support awards, not to mention a realistic approach to attorney fees so that the lower income spouse can actually afford to fight off the financial war of attrition these cases sometimes become.
My hunch is that if these efforts at greater economic fairness were linked to the equal time proposal, supporters would run from it as fast as possible.
Here we go again. What are your thoughts? Shall we use a cookie cutter approach or not? Proponents of mandatory joint custody advocate for the legislation claiming that this would avoid today's cookie cutter approach, which is claimed to be unfair and to favor mothers. But isn't the legislation just another cookie cutter -- different shape?
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