Breaking Down Proposed Changes to the “Best Interests” Law

Michigan House Bill no. 4691 seeks to amend the heck out of the Child Custody Act of 1970, all the way down to the name. The new name tells you everything up front: they want to call it the “Michigan Shared Parenting Act.” Here are the changes that you need to be aware of:

“Best Interests of the Child”
The biggest and most controversial change involves the definition of “Best Interests of the Child.” The phrase used to be defined as:

“best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

The new version looks substantially different. To wit (changes in capital lettering):

“best interests of the child” means BOTH OF THE FOLLOWING:

(A) MAINTAINING AN ONGOING RELATIONSHIP WITH EACH PARENT AND THE RIGHT OF THE CHILD TO A SUBSTANTIALLY EQUAL PARENTING TIME ARRANGEMENT THAT PROMOTES A STRONG RELATIONSHIP BETWEEN A CHILD AND HIS OR HER PARENTS.

(B) THE sum total of the following factors to be considered, evaluated, and determined by the court, RECOGNIZING THAT BOTH PARENTS, INDIVIDUALLY AND COLLECTIVELY, CONTRIBUTE DIRECTLY AND FINANCIALLY AND THAT PARENTING INCLUDES A DIVISION OF LABOR:

(i) The love, affection, and other emotional ties existing between the parties involved and the child.

(ii) THE CAPACITY AND A HISTORY OF THE PARENTS PROVIDING FOR, THROUGH FINANCIAL SUPPORT OR OTHERWISE, THE CHILD’S EDUCATION ENDEAVORS AND HEALTH CARE NEEDS.

(iii) THE CAPACITY AND A HISTORY OF THE PARENTS PROVIDING, THROUGH FINANCIAL SUPPORT OR OTHERWISE, FOOD, CLOTHING, AND OTHER NECESSITIES OF THE CHILD’S DAILY LIFE.

(iv) A HISTORY OF THE PARENTS MAINTAINING REGULAR AND ONGOING CONTACT WITH THE CHILD AND THE IMPACT ON THE CHILD IF REGULAR AND ONGOING CONTACT WITH THE PARENTS IS NOT MAINTAINED.

(v) THE CAPACITY AND A HISTORY OF THE PARENTS TO PROVIDE AGE-APPROPRIATE EMOTIONAL AND SOCIAL DEVELOPMENT.

(vi) A PARENT’S BEHAVIOR EXTENDING BEYOND REASONABLE PARENTING PRACTICES THAT MATERIALLY COMPROMISES THE STABILITY OF THE HOME OR THE HEALTH, SAFETY, OR WELL-BEING OF THE CHILD.

(vii) A MENTAL OR PHYSICAL CONDITION OF A PARENT THAT MATERIALLY COMPROMISES THE STABILITY OF THE HOME OR THE HEALTH, SAFETY, OR WELL-BEING OF THE CHILD.

(viii) THE IMPACT ON THE CHILD’S ACADEMICS IF REGULAR AND ONGOING CONTACT WITH BOTH PARENTS IS NOT MAINTAINED.

(ix) IF A PARENT IS ENGAGED IN CRIMINAL ACTIVITY OR SUBSTANCE USE THAT MATERIALLY COMPROMISES THE STABILITY OF THE HOME OR THE HEALTH, SAFETY, OR WELL-BEING OF THE CHILD.

(x)The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent OR A PERSON IN THE CHILD’S HOME.

(xi) Any other factor considered by the court THAT MAY MATERIALLY COMPROMISE THE STABILITY OF THE HOME OR THE HEALTH, SAFETY, OR WELL-BEING OF THE CHILD.

Let’s break down some of the changes in this redefinition. First and most obviously, the entire paragraph (A) makes it the explicit goal of every Michigan family court to put every child in a shared parenting arrangement — and the construction of the (A) and (B) paragraphs puts that directive as equal in importance to the sum total of every other element under (B). That is HUGE.

In fact, that alone is enough for us to hope this bill doesn’t ever see the light of day in its current incarnation. But we’ll cover that in Part II.

The line item (b) in the original simply vanishes. There is no mention in the new version of any concern regarding the disposition of the parents toward providing love and affection toward the child — so the court doesn’t care if you want to love your kid, they’re instructed to get you into a joint-parenting setup regardless. Furthermore, all notion of keeping the child growing up in the same belief system that they were in pre-divorce is gone.

The difference between the original (c) and the new (ii) and (iii) which replace it: the new version again directs the court to pay attention only to a parent’s “capacity to provide,” not their “capacity and disposition to provide” — so again, your desire to provide for your child is no longer relevant. That said, it does add education into the list of things that must be provided, so that is a win for the child.

Comparing the original (d) and (e) to the new (iv) and (v), we see another huge change. (d) and (e) were the most troublesome of the 12 original factors in the old law, because they meant that a parent who was involuntarily out of the picture due to military service, a prison sentence, or any other reason could be summarily denied custody because the child’s environment with their other parent had been ‘stable’ and ‘satisfactory’ for long enough that ‘maintaining continuity’ was a thing. The new version spins the same idea in the other direction: it’s now a question of the negative impact of not maintaining ‘regular and ongoing’ contact with both parents. This is a big and positive change.

As is the switch from (f) — putting “moral fitness” into any legal paradigm is just a recipe for disaster in the modern world — to (v). “Age-appropriate social and emotional development” as a concept is still vague and allows ample room for hand-waving, but is much more appropriate of an issue to have judges actually weighing in on than ‘moral fitness.’

We’ll come back to (vi) in a minute; for now let’s compared the original (g) to the new (vii), as both address the same fundamental topic: the physical and mental health of the parents. The new version is superior, because it forces the court to focus on the overall health of the parents, but specifically on whether or not any specific health issues the parents have will actually negatively impact the child.

(h) in the original text, on the other hand, simply asked the judges to consider the child’s overall history within the contexts of home, school, and community — which is appropriate. The corresponding paragraph (viii) narrows the focus to an absurd level, not only cutting out the home and community aspect, but asking the judge to focus exclusively on the impact that losing one parent might have on the child’s academic performance. That is simply wrong. But more on that in Part II.

Then we hit another massive issue: The child’s preference is now completely ignored. Item (i) completely vanishes, with no corollary in the new text. This bill would have us assume that in every case, the child would prefer to stay with both parents — and that’s simply not true.

Paragraph (j) in the original is almost entirely identical to paragraph (x) in the proposed amendment, which is fine. But then (k), the item that existed explicitly to direct children away from the custody of domestic abusers, vanishes. Why?!? Sorry, replacing that with the much broader (ix) doesn’t do that job, because there are domestic abusers out there who are canny enough to avoid being labeled criminals through a number of tricks.

Finally, point (l) and point (xi) are functionally identical, except that (xi) correctly keeps the courts focused on factors that are actually relevant to the child’s well-being, rather than allowing them to bring in entirely external factors simply because they feel strongly about those factors.

Whew! That was a lot of breakdown. It’s time for a break — we’ll come back next time with a bit more on what some of these changes actually mean and why this bill shouldn’t be passed.