Problems with Proposed Changes to the “Best Interests” Law

In our last post, we broke down the changes to the Child Custody Act of 1970 being proposed in Michigan House Bill no. 4691. This time, we’re going to get a bit opinionated on the subject. We mentioned in our previous post several things that the House Bill did right, and several that were clearly wrong. Talking about the wrong bits is more interesting, so we’re going to expound on them in more detail.

There were five major problems with HB4691:

  • It removes all references to the parent’s ‘disposition’ (i.e. desire) to take care of their kids — if you can provide something for your child, the courts assume you will,
  • It restricts what was a judge’s evaluation of a child’s history within their home, school, and community to an evaluation of only the impact that a child’s separation from one parent might have on their academic performance,
  • It removes any mention of the child’s preference from consideration,
  • It removes any mention of domestic abuse from consideration, and worst of all,
  • It assumes joint custody/co-parenting should always be the default goal of family courts.

The Importance of ‘Disposition’
This is one of those subtler problems, but nonetheless a significant one. Have you ever had a job that you didn’t want to do, but had to? Either because bills needed paying, or worse, because some authority told you that you had to do it? How much attention and care did you give the tasks and processes of that job?

If you’re a human being, the answer is “a lot less than I gave the things that I actually care about in life.” If you’re a parent, and the job in question is raising a child, guess what happens? Exactly the same thing. Children with two able and willing parents should absolutely have access to both if they want it — but children with one able and willing parent shouldn’t be forced by the court system to spend half their life with a parent who doesn’t want to be a parent. That’s a lose/lose situation.

The Importance of Home and Community — and of Considering All Possibilities
Despite the legal obligation we have to keep our children in school until they are 18 (16 with parental consent to dropping out), not all children are students first. There are many children who put other positive aspects of their lives, such as church involvement or acting as a caretaker for younger siblings or sick parents, ahead of their academic lives. By narrowing the court’s focus to exclude these aspects of life, the proposed law eliminates a judge’s prerogative in considering how a custody arrangement might affect them.

More importantly, by further narrowing a judge’s focus to how losing one parent may affect the child’s academic career, the law explicitly prevents a just from looking at how gaining one parent may affect the child’s academic career. Why would we want to prevent a judge from considering the fact that Mom’s new boyfriend teaches chemistry?

The Importance of a Child’ Preference
We as Americans have a culture-wide tendency to be deeply suspicious of people. We believe that, given the choice, people will choose not to work. We believe that they will choose not to share, choose not to be cooperative, and will choose only what is best for themselves in the short term. And we double-down on all of these assumptions when the person being asked is a child.

The problem is, it’s just not true. Dozens of social experiments across the world have proven that people will choose to work even if offered enough money to get by without working. We know from recent developments in archaeology and biology that sharing and cooperation are in fact etched into our genetic code. And studies have also shown that children take decision-making seriously and are markedly responsible with those decisions when given appropriate structure by a third-party (i.e. uninvolved in the divorce) expert. We shouldn’t be taking these children’s voices away; we should be helping them express themselves effectively. After all, no one knows how the two parents will parent better than the parented.

The Importance of Focusing on Domestic Abuse
The statistics on domestic abuse and domestic violence in Michigan are staggering — upwards of 150,000 incidents each year covering a bare minimum of 30,000 victims get reported. We know thanks once again to a variety of studies that most incidents of domestic abuse don’t get reported, so we can safely double both of those numbers.

There is no reason whatsoever to fail to call the courts’ attention to the potential of domestic abuse playing a role in a marriage — especially when talking about the well-being of a child. It’s inexcusable.

And The Granddaddy of them All…The Importance of Not Starting with the Goal in Mind
The number one biggest problem with all of this, however, blows all the rest of them out of the water. It’s a simple thought — in fact, it’s the same thought that forms the backdrop of all of the ‘social experiments’ links above: people know their own lives better than you do.

The ‘social experiments’ above display how, world wide and across recent history, giving poor people no-strings-attached money universally results in those people spending their money in a way that will improve their ability to make more money. The only exceptions are people who have critically important non-money-making things to do, such as single mothers and students, who spend the ‘free money’ so they can focus more on those critically important tasks.

In exactly the same way, giving divorcing couples the ability to determine for themselves (when possible, naturally!) the parenting plan that works best within the context and framework of their own lives is far superior to any option that predetermines a  “best result” before the divorce papers are even filed.

This isn’t even an exotic option; Arizona already uses it. Wayne County even has a template co-parenting plan available online.

There is exactly no reason to have a court decide a priori how a given divorced couple should divide their parenting time. In fact, the only reason to have a court decide that issue at all is if the parents cannot come to an agreement on their own, or if they are not legally allowed for any reason to make the decision independently.


Michigan House Bill 4691 has some good ideas on it. But the bad ideas outweigh the good ones both in number and in effect, and the worst idea is so ill-thought-out that it’s genuinely no different than the “Mothers always win” doctrine of the 1970s or the “Sole custody is always better” doctrine of the 1990s. At some point, we have to start giving people enough credit to realize that they can and should take responsibility for planning and executing their futures in a way that works best for them.

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