HOUSE BILL No. 5154 December 1, 1999, Introduced by Reps. Spade, Wojno, Jamnick, Bovin, Schauer, Bogardus, Pappageorge, DeHart, Switalski and Jacobs and referred to the Committee on Family and Civil Law. A bill to amend 1970 PA 91, entitled "Child custody act of 1970," by amending sections 2, 3, 5, and 6a (MCL 722.22, 722.23, 722.25, and 722.26a), section 2 as amended by 1999 PA 156, sections 3 and 5 as amended by 1993 PA 259, and section 6a as added by 1980 PA 434, and by adding section 5a. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 2. As used in this act: 2 (a) "Agency" means a legally authorized public or private 3 organization, or governmental unit or official, whether of this 4 state or of another state or country, concerned in the welfare of 5 minor children, including a licensed child placement agency. 6 (b) "Attorney" means, if appointed to represent a child 7 under this act, an attorney serving as the child's legal advocate 8 in a traditional attorney-client relationship with the child, as 04980'99 GWH 2 1 governed by the Michigan rules of professional conduct. An 2 attorney defined under this subdivision owes the same duties of 3 undivided loyalty, confidentiality, and zealous representation of 4 the child's expressed wishes as the attorney would to an adult 5 client. 6 (c) "Child" means minor child and children. Subject to 7 section 4a, for purposes of providing support, child includes a 8 child and children who have reached 18 years of age. 9 (D) "DE FACTO CUSTODIAN" MEANS AN INDIVIDUAL WHO HAS BEEN 10 THE PRIMARY CAREGIVER FOR, AND FINANCIAL SUPPORT OF, A CHILD WHO 11 HAS RESIDED WITH THE INDIVIDUAL FOR AT LEAST 6 MONTHS IF THE 12 CHILD IS YOUNGER THAN 3 YEARS OLD OR FOR AT LEAST 1 YEAR IF THE 13 CHILD IS 3 YEARS OLD OR OLDER. DE FACTO CUSTODIAN DOES NOT 14 INCLUDE AN INDIVIDUAL WHO CARES FOR A CHILD IN A FOSTER FAMILY 15 HOME OR FOSTER FAMILY GROUP HOME AS THOSE TERMS ARE DEFINED IN 16 SECTION 1 OF 1973 PA 116, MCL 722.111. A PERIOD OF TIME AFTER A 17 CHILD CUSTODY ACTION IS COMMENCED SHALL NOT BE INCLUDED IN DETER- 18 MINING WHETHER THE CHILD HAS RESIDED WITH AN INDIVIDUAL FOR THE 19 REQUIRED MINIMUM PERIOD. 20 (E)(d)"Guardian ad litem" means an individual whom the 21 court appoints to assist the court in determining the child's 22 best interests. A guardian ad litem does not need to be an 23 attorney. 24 (F)(e)"Lawyer-guardian ad litem" means an attorney 25 appointed under section 4. A lawyer-guardian ad litem represents 26 the child, and has the powers and duties, as set forth in section 27 4. 04980'99 3 1 (G)(f)"State disbursement unit" or "SDU" means the 2 entity established in section 6 of the office of child support 3 act, 1971 PA 174, MCL 400.236. 4 (H)(g)"Third person" meansanyAN individual other 5 than a parent. 6 Sec. 3. As used in this act:, "best interests of the7child"8 (A) "CHILD'S BEST INTERESTS" means the sum total of the fol- 9 lowing factors to be considered, evaluated, and determined by the 10 court: 11 (i)(a)The love, affection, and other emotional ties 12 existing betweenthe partiesEACH PARTY involved and the 13 child. 14 (ii)(b)The capacity and disposition ofthe parties15 EACH PARTY involved to give the child love, affection, and guid- 16 ance and to continue the education and raising of the child in 17 his or her religion or creed, if any. 18 (iii)(c)The capacity and disposition ofthe parties19 EACH PARTY involved to provide the child with food, clothing, 20 medical care or other remedial care recognized and permitted 21 under the laws of this state in place of medical care, and other 22 material needs. 23 (iv)(d)The length of time the child has lived in a 24 stable, satisfactory environment, and the desirability of main- 25 taining continuity. 26 (v)(e)The permanence, as a family unit, of the existing 27 or proposed custodial home or homes. 04980'99 4 1 (vi)(f)The moral fitness ofthe partiesEACH PARTY 2 involved. 3 (vii)(g)The mental and physical health ofthe parties4 EACH PARTY involved. 5 (viii)(h)The CHILD'S home, school, and community record. 6of the child.7 (ix)(i)The CHILD'S reasonable preference,of the8child,if the court considers the child to be of sufficient age 9 to express A preference. 10 (x)(j)The willingness and ability of eachof the11partiesPARTY to facilitate and encourage a close and continuing 12 parent-child relationship between the child and the other parent 13 or the child and the parents. 14 (xi)(k)Domestic violence, regardless of whether the vio- 15 lence was directed against or witnessed by the child. 16 (xii) EVIDENCE THAT 1 OR MORE DE FACTO CUSTODIANS HAVE CARED 17 FOR THE CHILD. IF THE EVIDENCE IS SUFFICIENT IN COMPLIANCE WITH 18 SECTION 5A, THE COURT SHALL ALSO CONSIDER, EVALUATE, AND DETER- 19 MINE THE FACTORS LISTED IN SUBDIVISION (B). 20 (xiii)(l)Any other factorconsidered bythe courtto21beCONSIDERS relevant to a particular child custody dispute. 22 (B) "CHILD'S BEST INTERESTS" INCLUDES, IF REQUIRED BY SUBDI- 23 VISION (A)(XII), ALL OF THE FOLLOWING FACTORS: 24 (i) EACH DE FACTO CUSTODIAN'S WISHES. 25 (ii) THE EXTENT TO WHICH EACH DE FACTO CUSTODIAN HAS CARED 26 FOR, NURTURED, AND SUPPORTED THE CHILD. 04980'99 5 1 (iii) THE INTENT OF THE CHILD'S PARENT IN LEAVING THE CHILD 2 WITH A DE FACTO CUSTODIAN. 3 (iv) THE CIRCUMSTANCES UNDER WHICH THE CHILD WAS ALLOWED TO 4 REMAIN IN A DE FACTO CUSTODIAN'S CUSTODY, INCLUDING WHETHER THE 5 CHILD WAS IN THE DE FACTO CUSTODIAN'S CUSTODY TO ALLOW A PARENT 6 WHO IS NOW SEEKING CUSTODY TO WORK, SEEK EMPLOYMENT, OR ATTEND 7 SCHOOL. 8 Sec. 5. (1) If a child custody dispute is between the par- 9 ents, BETWEEN A PARENT OR THE PARENTS AND A DE FACTO CUSTODIAN, 10 between agencies, or between third persons, the CHILD'S best 11 interestsof the childcontrol. If the child custody dispute 12 is betweentheA parent,orTHE parents, OR A DE FACTO 13 CUSTODIAN and an agency or a third person OTHER THAN A DE FACTO 14 CUSTODIAN, the court shall presume that the CHILD'S best inter- 15 estsof the childare served by awarding custody to the parent 16 or parents, unless the contrary is established by clear and con- 17 vincing evidence. 18 (2) Notwithstanding other provisions of this act, if a child 19 custody dispute involves a child who is conceived as the result 20 of acts for which 1 of the child's biological parents is con- 21 victed of criminal sexual conduct as provided in sections 520a to 22 520e and 520g of the Michigan penal code,Act No. 328 of the23Public Acts of 1931, being sections 750.520a to 750.520e and24750.520g of the Michigan Compiled Laws1931 PA 328, MCL 750.520A 25 TO 750.520E AND 750.520G, the court shall not award custody to 26 the convicted biological parent. This subsection does not apply 27 to a conviction under section 520d(1)(a) of the Michigan penal 04980'99 6 1 code,Act No. 328 of the Public Acts of 1931, being section2750.520d of the Michigan Compiled Laws1931 PA 328, MCL 3 750.520D. This subsection does not apply if, after the date of 4 the conviction, the biological parents cohabit and establish a 5 mutual custodial environment for the child. 6 (3) Notwithstanding other provisions of this act, if an 7 individual is convicted of criminal sexual conduct as provided in 8 sections 520a to 520e and 520g ofAct No. 328 of the Public Acts9of 1931THE MICHIGAN PENAL CODE, 1931 PA 328, MCL 750.520A TO 10 750.520E AND 750.520G, and the victim is the individual's child, 11 the court shall not award custody of that child or a sibling of 12 that child to that individual, unless both the child's other 13 parent and, if the court considers the child or sibling to be of 14 sufficient age to express his or her desires, the child or sib- 15 ling consent to the custody. 16 SEC. 5A. (1) THIS SECTION APPLIES IF THE COURT FINDS BY 17 CLEAR AND CONVINCING EVIDENCE THAT 1 OR MORE DE FACTO CUSTODIANS 18 HAVE CARED FOR A CHILD WHO IS THE SUBJECT OF A CUSTODY DISPUTE. 19 (2) IF THE COURT MAKES THE FINDING DESCRIBED IN SUBSECTION 20 (1), THE COURT SHALL INCLUDE IN ITS DETERMINATION OF THE CHILD'S 21 BEST INTERESTS THE FACTORS LISTED IN SECTION 3(B). 22 (3) IF THE COURT DETERMINES THAT THE CHILD IS IN A DE FACTO 23 CUSTODIAN'S CUSTODY, THE COURT SHALL MAKE THAT DE FACTO CUSTODIAN 24 A PARTY TO THE ACTION. 25 Sec. 6a. (1) In custody disputes between parents, the par- 26 ents shall be advised of joint custody. At the request of either 27 parent, the court shall consider an award of joint custody, and 04980'99 7 1 shall state on the record the reasons for granting or denying a 2 request. In other cases joint custody may be considered by the 3 court. The court shall determine whether joint custody is in the 4 CHILD'S bestinterest of the childINTERESTS by considering the 5 following factors: 6 (a) The factors enumerated in section33(A) AND, IF 7 APPLICABLE, SECTION 3(B). 8 (b) Whether the parents, OR A PARENT OR THE PARENTS AND A DE 9 FACTO CUSTODIAN, will be able to cooperate and generally agree 10 concerning important decisions affecting the CHILD'S welfare.of11the child.12 (2) If the parents agree on joint custody, the court shall 13 award joint custody unless the court determines on the record, 14 based upon clear and convincing evidence, that joint custody is 15 not in the CHILD'S best interests.of the child.IF A DE FACTO 16 CUSTODIAN WHO IS A PARTY TO THE ACTION OBJECTS TO AN AWARD OF 17 JOINT CUSTODY TO ONLY THE PARENTS, THE COURT SHALL NOT ACT UNDER 18 THIS SUBSECTION, BUT SHALL PROCEED WITH A DETERMINATION OF THE 19 CHILD'S BEST INTERESTS. 20 (3) If the court awards joint custody, the court may include 21 in its award a statement regarding when the child shall reside 22 with each parent, or may provide that physical custody be shared 23 by the parents in a manner to assure the child continuing contact 24 with both parents. IF A DE FACTO CUSTODIAN IS TO SHARE JOINT 25 CUSTODY WITH A PARENT OR THE PARENTS, THE COURT SHALL INCLUDE 26 PROVISIONS REGARDING THE DE FACTO CUSTODIAN IN A STATEMENT UNDER 27 THIS SUBSECTION. 04980'99 8 1 (4) During the time a child resides with a parent OR DE 2 FACTO CUSTODIAN, thatparentINDIVIDUAL shall decide all rou- 3 tine matters concerning the child. 4 (5) If there is a dispute regarding residency, the court 5 shall state the basis for a residency award on the record or in 6 writing. 7 (6) Joint custodyshallDOES not eliminate the responsi- 8 bility for child support. Each parentshall beIS responsible 9 for child support based on the CHILD'S needsof the childand 10theEACH PARENT'S actual resources.of each parent.If a 11 parent OR DE FACTO CUSTODIAN would otherwise be unable to main- 12 tain adequate housing for the child andthe otherA parent has 13 sufficient resources, the court may order modified support pay- 14 ments for a portion of housing expenses even during a period when 15 the child is not residing in the home of the parent OR DE FACTO 16 CUSTODIAN receiving support. An order of joint custody, in and 17 of itself,shallDOES not constitute grounds for modifying a 18 support order. 19 (7) As used in this section, "joint custody" means an order 20 of the court in which 1 or both of the following is specified: 21 (a) That the child shall reside alternately for specific 22 periods with eachof the parentsPARENT OR SHALL RESIDE FOR 23 SPECIFIC PERIODS WITH EACH PARENT AND 1 OR MORE DE FACTO 24 CUSTODIANS. 25 (b) That the parents, OR A PARENT OR THE PARENTS AND 1 OR 26 MORE DE FACTO CUSTODIANS, shall share decision-making authority 04980'99 9 1 as to the important decisions affecting the CHILD'S welfare.of2the child.04980'99 Final page. GWH