Bill Text: MI HB4074 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Family law; child custody; exemption allowing person convicted of certain criminal sexual conduct to be granted custody; remove. Amends secs. 5 & 7a of 1970 PA 91 (MCL 722.25 & 722.27a).
Spectrum: Moderate Partisan Bill (Democrat 6-1)
Status: (Introduced - Dead) 2019-01-24 - Bill Electronically Reproduced 01/23/2019 [HB4074 Detail]
Download: Michigan-2019-HB4074-Introduced.html
HOUSE BILL No. 4074
January 23, 2019, Introduced by Reps. Hope, Pagan, Ellison, Rendon, Anthony, Brixie and Love and referred to the Committee on Judiciary.
A bill to amend 1970 PA 91, entitled
"Child custody act of 1970,"
by amending sections 5 and 7a (MCL 722.25 and 722.27a), as amended
by 2016 PA 96.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5. (1) If a child custody dispute is between the parents,
between agencies, or between third persons, the best interests of
the child control. If the child custody dispute is between the
parent or parents and an agency or a third person, the court shall
presume that the best interests of the child are served by awarding
custody to the parent or parents, unless the contrary is
established by clear and convincing evidence.
(2) Notwithstanding other provisions of this act, if a child
custody dispute involves a child who is conceived as the result of
acts for which 1 of the child's biological parents is convicted of
criminal sexual conduct as provided in sections 520a to 520e and
520g of the Michigan penal code, 1931 PA 328, MCL 750.520a to
750.520e and 750.520g, or a substantially similar statute of
another state or the federal government, or is found by clear and
convincing evidence in a fact-finding hearing to have committed
acts of nonconsensual sexual penetration, the court shall not award
custody
to that biological parent. This subsection does not apply
to
a conviction under section 520d(1)(a) of the Michigan penal
code,
1931 PA 328, MCL 750.520d. This
subsection does not apply if,
after the date of the conviction, or the date of the finding in a
fact-finding hearing described in this subsection, the biological
parents cohabit and establish a mutual custodial environment for
the child.
(3) An offending parent is not entitled to custody of a child
described in subsection (2) without the consent of that child's
other parent or guardian.
(4) Notwithstanding other provisions of this act, subsection
(2) does not relieve an offending parent of any support or
maintenance obligation to the child. The other parent or the
guardian of the child may decline support or maintenance from the
offending parent.
(5) A parent may assert an affirmative defense of the
provisions of subsection (2) in a proceeding brought by the
offending parent regarding a child described in subsection (2).
(6) Notwithstanding other provisions of this act, if an
individual is convicted of criminal sexual conduct as provided in
sections 520a to 520e and 520g of the Michigan penal code, 1931 PA
328, MCL 750.520a to 750.520e and 750.520g, and the victim is the
individual's child, the court shall not award custody of that child
or a sibling of that child to that individual, unless both the
child's other parent and, if the court considers the child or
sibling to be of sufficient age to express his or her desires, the
child or sibling consent to the custody.
(7) As used in this section, "offending parent" means a parent
who has been convicted of criminal sexual conduct as described in
subsection (2) or who has been found by clear and convincing
evidence in a fact-finding hearing to have committed acts of
nonconsensual sexual penetration as described in subsection (2).
Sec. 7a. (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.
(2) If the parents of a child agree on parenting time terms,
the court shall order the parenting time terms unless the court
determines on the record by clear and convincing evidence that the
parenting time terms are not in the best interests of the child.
(3) A child has a right to parenting time with a parent unless
it is shown on the record by clear and convincing evidence that it
would endanger the child's physical, mental, or emotional health.
(4) Notwithstanding other provisions of this act, if a
proceeding regarding parenting time involves a child who is
conceived as the result of acts for which 1 of the child's
biological parents is convicted of criminal sexual conduct as
provided in sections 520a to 520e and 520g of the Michigan penal
code, 1931 PA 328, MCL 750.520a to 750.520e and 750.520g, or a
substantially similar statute of another state or the federal
government, or is found by clear and convincing evidence in a fact-
finding hearing to have committed acts of nonconsensual sexual
penetration, the court shall not grant parenting time to that
biological
parent. This subsection does not apply to a conviction
under
section 520d(1)(a) of the Michigan penal code, 1931 PA 328,
MCL
750.520d. This subsection does not
apply if, after the date of
the conviction, or the date of the finding in a fact-finding
hearing described in this subsection, the biological parents
cohabit and establish a mutual custodial environment for the child.
(5) A parent may assert an affirmative defense of the
provisions of subsection (4) in a proceeding brought by the
offending parent regarding a child described in subsection (4).
(6) Notwithstanding other provisions of this act, if an
individual is convicted of criminal sexual conduct as provided in
sections 520a to 520e and 520g of the Michigan penal code, 1931 PA
328, MCL 750.520a to 750.520e and 750.520g, and the victim is the
individual's child, the court shall not grant parenting time with
that child or a sibling of that child to that individual, unless
both the child's other parent and, if the court considers the child
or sibling to be of sufficient age to express his or her desires,
the child or sibling consent to the parenting time.
(7) The court may consider the following factors when
determining the frequency, duration, and type of parenting time to
be granted:
(a) The existence of any special circumstances or needs of the
child.
(b) Whether the child is a nursing child less than 6 months of
age, or less than 1 year of age if the child receives substantial
nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child
during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting
from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on,
the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise
parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise
reasonable parenting time.
(h) The threatened or actual detention of the child with the
intent to retain or conceal the child from the other parent or from
a third person who has legal custody. A custodial parent's
temporary residence with the child in a domestic violence shelter
shall not be construed as evidence of the custodial parent's intent
to retain or conceal the child from the other parent.
(i) Any other relevant factors.
(8) Parenting time shall be granted in specific terms if
requested by either party at any time.
(9) A parenting time order may contain any reasonable terms or
conditions that facilitate the orderly and meaningful exercise of
parenting time by a parent, including 1 or more of the following:
(a) Division of the responsibility to transport the child.
(b) Division of the cost of transporting the child.
(c) Restrictions on the presence of third persons during
parenting time.
(d) Requirements that the child be ready for parenting time at
a specific time.
(e) Requirements that the parent arrive for parenting time and
return the child from parenting time at specific times.
(f) Requirements that parenting time occur in the presence of
a third person or agency.
(g) Requirements that a party post a bond to assure compliance
with a parenting time order.
(h) Requirements of reasonable notice when parenting time will
not occur.
(i) Any other reasonable condition determined to be
appropriate in the particular case.
(10) Except as provided in this subsection, a parenting time
order shall contain a prohibition on exercising parenting time in a
country that is not a party to the Hague Convention on the Civil
Aspects of International Child Abduction. This subsection does not
apply if both parents provide the court with written consent to
allow a parent to exercise parenting time in a country that is not
a party to the Hague Convention on the Civil Aspects of
International Child Abduction.
(11) During the time a child is with a parent to whom
parenting time has been awarded, that parent shall decide all
routine matters concerning the child.
(12)
Prior to Before entry of a temporary order, a parent may
seek an ex parte interim order concerning parenting time. If the
court enters an ex parte interim order concerning parenting time,
the party on whose motion the ex parte interim order is entered
shall
must have a true copy of the order served on the friend
of
the court and the opposing party.
(13) If the opposing party objects to the ex parte interim
order,
he or she shall must file with the clerk of the court within
14 days after receiving notice of the order a written objection to,
or a motion to modify or rescind, the ex parte interim order. The
opposing
party shall must have a true copy of the written objection
or motion served on the friend of the court and the party who
obtained the ex parte interim order.
(14) If the opposing party files a written objection to the ex
parte interim order, the friend of the court shall attempt to
resolve the dispute within 14 days after receiving it. If the
matter cannot be resolved, the friend of the court shall provide
the opposing party with a form motion and order with written
instructions for their use in modifying or rescinding the ex parte
order without assistance of counsel. If the opposing party wishes
to proceed without assistance of counsel, the friend of the court
shall schedule a hearing with the court that shall be held within
21 days after the filing of the motion. If the opposing party files
a motion to modify or rescind the ex parte interim order and
requests a hearing, the court shall resolve the dispute within 28
days after the hearing is requested.
(15) An ex parte interim order issued under this section shall
contain the following notice:
NOTICE:
1. You may file a written objection to this order or a motion
to modify or rescind this order. You must file the written
objection or motion with the clerk of the court within 14 days
after you were served with this order. You must serve a true copy
of the objection or motion on the friend of the court and the party
who obtained the order.
2. If you file a written objection, the friend of the court
must try to resolve the dispute. If the friend of the court cannot
resolve the dispute and if you wish to bring the matter before the
court without the assistance of counsel, the friend of the court
must provide you with form pleadings and written instructions and
must schedule a hearing with the court.
(16) As provided in the servicemembers civil relief act, 50
USC 501 to 597b, if a motion for change of parenting time is filed
during the time a parent is on deployment, a parent may file and
the court shall entertain an application for stay. The court shall
presume that the best interests of the child are served by not
entering an order modifying or amending a previous judgment or
order, or issuing a new order, that changes the parenting time that
existed on the date the parent was called to deployment, unless the
contrary is established by clear and convincing evidence, at which
time the court may enter a temporary parenting time order. When a
temporary parenting time order is issued under this subsection, the
court may include a limit on the period of time that the temporary
parenting time order remains in effect. At any stage before final
judgment in the proceeding, the parent may file an application for
stay or otherwise request a stay of proceedings or file an
application for an extension of a stay. The parent and the
custodial child are not required to be present to consider the
application for stay or extension of a stay. The application for
stay or extension of a stay is sufficient if it is a signed,
written statement, certified to be true under penalty of perjury.
The same conditions for the initial stay apply to applications for
an extension of a stay.
(17) The parent shall inform the court of the deployment end
date before or within 30 days after that deployment end date. Upon
notification of a parent's deployment end date, the court shall
reinstate the parenting time order in effect immediately preceding
that period of deployment. If a motion for change of parenting time
is filed after a parent returns from deployment, the court shall
not consider a parent's absence due to that deployment in making a
determination regarding change of parenting time. Future
deployments shall not be considered in making a best interest of
the child determination.
(18) If the deploying parent and the other parent share
custody, the deploying parent must notify the other parent of an
upcoming deployment within a reasonable period of time.
(19) As used in this section, "offending parent" means a
parent who has been convicted of criminal sexual conduct as
described in subsection (4) or who has been found by clear and
convincing evidence in a fact-finding hearing to have committed
acts of nonconsensual sexual penetration as described in subsection
(4).
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
