The Michigan legislature is trying to pass legislation called the Michigan Shared Parenting Act, HB 4691, http://www.legislature.mi.gov/(S(2bjmoemzoxqbnuuhgn2vbgxb))/mileg.aspx?page=GetObject&objectname=2017-HB-4691, which completely throws out over 30 years of statute and case law, and favors consistency (in the form of joint custody for all cases) over the best interests of the children. This bill is a horrible idea, it is bad for families, and especially bad for children. I don’t remember the last time I spoke out against proposed legislation. Let’s just say, it is few and far between. But I couldn’t remain silent after reading HB 4691.
Our
firm specializing in appeals, and we spend a great deal of our time on family
law appeals. This means over 75% of our cases, we are reviewing the decision of
a family law judge, and very frequently do so in custody appeals. Even
though our job often is to explain why the trial court’s decision is wrong,
either factually or legally, and even though we have a very vibrant
appellate practice, we only see a small fraction of the custody cases that are decided
by our Michigan judges.
This
bill proposes to take away any trial court discretion. That is a horrible
idea. The trial court is the one who sits and listens to the credibility
of the witnesses. The trial court is the one who weighs what is in
the child’s best interest. This bill takes away the
requirement that a custody decision be in the child’s best interest and
reflexively instructs the trial court to award joint custody in almost every
case, regardless of the needs of any particular child or any particular family.
Joint custody is great sometimes. It is also terrible sometimes. Joint custody
does not work for every case and HB 4691 will frankly be a disaster for
children and families.
Interestingly,
some of my colleagues have done research and have learned that joint
custody is already becoming more common. By way of comparison between
statistics in 1990 and 2015 the percent of custody award to the mother, father,
joint, or third party:
- 1990 -- Mother 74%; Father 12%; Joint 13%, and third party 1%
- 2015 - Mother 45%; Father 8%; Joint 44%, and third party 3%
As
observed in these statistics, the trial courts have dramatically increased the
percent of time that they award joint custody. To me, this shows that the
system we currently have in place, does not need to be thrown out the window,
as HB 4691 would do. This significant progress happened under a Child Custody
Act that has remained relatively static. This suggests that our current laws
don't need reforming. Instead, the change has been in societal and judicial
attitudes. The one thing that has changed over the time-frame shown by these
numbers is the creation of the family division with judges who have specialized
knowledge. It isn't perfect, of course. We still have the problem of rotation
and of new judges newly elected or appointed to the bench being assigned to the
family division even if they have no interest or experience in the area of
family law. Many family law attorneys have concluded that if we want to
continue this trend toward gender equity in custody awards, we need for focus
on court structure and judicial education issues, not messing with the best
interests factors or presumptions, which we think are already gender neutral.
Also,
as an appellate attorney, we think HB 4691 would create a ton of work for our
law practice. There are so many terms that are defined in the law that it will
create a lot of appellate litigation. The legislation is frankly very
confusing, which will also give appellate attorneys a field day. Yet my concern
for families and children of this state overrides any potential increase in
business my firm would receive from the passage of HB 4691.
Labels: best interests of child, child custody act, family law appeal, HB 4691, joint custody, shared parenting time, trial court discretion
