Mandatory joint custody | A Family Court judge's view

 I had the distinct pleasure to meet Judge Jon Van Allsburg of Grand Haven, Michigan at the recent  6th Annual Family Law Institute in Plymouth, Michigan. Judge Van Allsburg had emailed an extremely informative post to the State Bar of Michigan's Family Law Listserv on October 12th about the proposed HB 4564 dealing with a "presumption" of joint custody. I asked him if I could share his message with the folks who read Updates in Michigan Family Law and he graciously agreed. I appreciate Judge Van Allsburg's contribution and his wisdom. The following is his message:

"The discussion of proposed HB 4564 appears to be deteriorating, as recent posts seem to shed a lot more heat than light on the subject.

"However, in the interest of contributing something beyond anecdotes, I'll quote some relevant statistics from my statement read to the House Committee on Family and Children Services last December (with respect to former HB 5267, which is now reintroduced as HB 4564):

"Ottawa County’s experience may be helpful here.  Our Friend of the Court has kept a record of its custody recommendations to the court in disputed cases over the past year to-date, representing 165 total cases. [Exhibit is not included] In these 165 litigated cases, approximately one-third resulted in a recommendation for joint legal and joint physical custody under current law.  More interestingly, in those cases in which joint physical custody was not recommended, the recommendation for physical custody was split nearly evenly between mothers (52 cases) and fathers (53 cases).  Joint legal custody was recommended in nearly all of those cases.  These numbers do not suggest the existence of a problem requiring a one-size-fits-all solution, particularly when that solution steers Michigan’s public policy away from the best interests of the child.  This data also suggests that in two-thirds of these contested cases, joint physical custody was not in the best interests of the children involved."

"I also noted for the committee's benefit that the actual outcome of these cases was very similar to the FOC recommendations.  Ottawa County may not reflect the experience of the rest of the state, but it's a little more enlightening to compare results in cases where custody was actually litigated, rather than lumping them together with all the uncontested and default cases.  The majority of custody orders in divorce cases result from either the agreement of the parties, or entry of the judgment by default.  This seems to be primarily responsible for the high percentage of mothers receiving primary physical custody in the statistics cited by Mr. Downs.  As a related aside, it's not uncommon for a father to file a complaint for divorce and ask for joint legal custody and primary physical custody to the mother.  However, it's extremely rare to see a mother file for divorce and ask for physical custody to father.  Parenting roles based on traditional role models are clearly not dead, but that has more to do with the choices of parents than judicial bias

"In the past few years, requests for joint physical custody have become much more common, but joint physical custody is still a decision that ought to be based on the best interests of the child, rather than mandated by statute.  Current law already states a presumption in favor of joint custody.  HB 4564 states a mandate for joint physical custody, not a presumption."

Hon. Jon A. Van Allsburg
20th Circuit Court
Ottawa County
Grand Haven, Michigan

Comments

[Doug Dante]

Thank you Hon. Jon A. Van Allsburg of the Ottowa County curt for recording and reporting statistical summaries of your court's custody recommendations.

As you said, "Ottawa County may not reflect the experience of the rest of the state"

I agree.

As an experienced Judge, you've made public statistical summaries of recommendations make by your court to allow the public to understand that you're acting in the best interests of justice.

I urge you to take the next logical step. Request that EVERY jurisdiction create similar statistical summaries.

Please help to create and support a Friend of the Court Sunshine Act, like this suggested first cut that I drafted as an amateur here:

http://www.scribd.com/doc/430033/-Proposal-Michigan-Friend-of-the-Court-Sunshine-Act

Best Wishes,

Doug Dante

[Richard Postma]

Judge Van Allsburg's comments demonstrate the quintessential problem with the family courts in Michigan; namely, that "the best interests of the child" are even knowable by an attorney turned politician.

The family court is not a court of punishment. Taking children away from fit and willing parents is a form of punishment, one of the most sinister powers available to family court judges today. And these actions are taken every day for the most superficial of reasons--so often it seems the only standard is the caprice of a judge. That is why a legislative "mandate" is necessary, not a "presumption."

When left without mandated direction from the legislature, judges can "presume" away and pave roads with good intentions.

Richard Postma, Ottawa County

P.S. Thanks Jeanne for keeping the discussion of this legislation going.

[Angela Pedersen, R.N.]

The Hon. Jon A. Van Allsburg provides statistics that do not reflect the entire state. This sounds like an excellent county to get a divorce/child custody dispute resolved. The Judge states, "Current law already states a presumption in favor of joint custody." this is not true. Both parties must be informed of joint custody and nothing more. If one of the parents disagrees with joint physical custody the child or children will be denied their fundamental right to be loved, guided, educated and nurtured by both fit and willing parents. The "best interest factors" have failed Michigan, families, parents, grandparents and most of all children. Judicial discretion has also failed our families and children. It was the "judicial discretion" of the Supreme Court which ruled in favor of slavery many years ago! Title IV-D federal incentives fuels what many consider to be court sponsored child abuse - the cookie-cutter time of 4-6 days a month that most fathers (sometimes mothers) receive with their children. Follow the flow of money back into the FOC and your county court system here: http://www.achildsright.net/html/title_iv-d.html