The Michigan Board of Canvassers on Friday approved the language of an initiated petition (PDF) to amend the Child Custody Act of 1970 "to create a rebuttable presumption that the award of joint legal and joint physical custody to the parties of a custody dispute is in the best interest of a minor child of said parties." The petition was paid for by Dad and Moms PAC. The State , Family Law Section, and and the Judicial Conference have consistently opposed amendments to the Child Custody Act that would have the effect of reducing judicial discretion.
The rationale for the opposition of the State Bar, the Judicial Conference, and the Family Law section to a legislation with a similar intent to the approved petition language is:
The Judicial Conference: The Judicial Conference opposes HB 4564 which would require judges to apply a presumption of joint custody in contested disputes between parents. Under current law, trial courts are already mandated to consider joint custody at the request of either party. Further, custody decisions must be analyzed within the framework of 12 factors focused on the "best interest of the child". As a result, the decision-making focuses on a child's needs rather than a parental preference. This distinction is important because there are times, particularly in high conflict custody disputes, when joint custody is not best for a child. Although the bill provides for an exception when one parent is "unfit", this threshold is misleading for several reasons. First, "unfit" is not defined in the Child Custody Act. Second, "unfit" as defined under the Probate Code, sets forth procedures to protect a child from potentially harmful behaviors. Finally, the types of behaviors enumerated under the Probate Code are not entirely reflective of the types of behaviors which are--and should be--barriers to joint custody. When parents cannot agree on how to prioritize their child's needs above their own, forcing a split down the middle, as suggested by HB 4564, ignores both the underlying dysfunction and the best interest of that child. Therefore, the Judicial Conference must oppose HB 4564.
The Family Law Section: HB 4564 is this year's version of the mandatory equal physical custody bill. The Council opposed last year's version (HB 5367) and the Council has a position paper opposing even the presumption of joint physical custody. This bill would require the court to award equal physical custody in every custody dispute where the parties live in the same school district, unless the court finds by clear and convincing evidence that a parent is unfit, unwilling, or unable to care for the child. The Family Law Section opposes this bill. The effect of this bill would be to disregard the best interest factors and impose a single type of custody arrangement on all families. It assumes that joint legal and physical custody is best for all children, regardless of what those children want, or the extent of their parents' conflict. This bill benefits the parties with the poorest parenting skills, at the expense of their children. The Council opposes this bill in its entirety.
The State Bar: The State Bar has a long-standing position of opposing any measure that would limit judicial discretion, which HB 4564 would effectively do by eliminating a judge's ability to weigh the facts and circumstances surrounding a custody hearing before entering a judgment on custody arrangement. The ability to consider "best interest" factors versus imposing a single type of custody is important in custody proceedings.
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