The Michigan legislature is trying to pass legislation called the Michigan Shared Parenting Act, HB 4691, http://www.legislature.mi.gov/(S(2bjmoemzoxqbnuuhgn2vbgxb))/mileg.aspx?page=GetObject&objectname=2017-HB-4691, which completely throws out over 30 years of statute and case law, and favors consistency (in the form of joint custody for all cases) over the best interests of the children. This bill is a horrible idea, it is bad for families, and especially bad for children. I don’t remember the last time I spoke out against proposed legislation. Let’s just say, it is few and far between. But I couldn’t remain silent after reading HB 4691.
Our firm specializing in appeals, and we spend a great deal of our time on family law appeals. This means over 75% of our cases, we are reviewing the decision of a family law judge, and very frequently do so in custody appeals. Even though our job often is to explain why the trial court’s decision is wrong, either factually or legally, and even though we have a very vibrant appellate practice, we only see a small fraction of the custody cases that are decided by our Michigan judges.
This bill proposes to take away any trial court discretion. That is a horrible idea. The trial court is the one who sits and listens to the credibility of the witnesses. The trial court is the one who weighs what is in the child’s best interest. This bill takes away the requirement that a custody decision be in the child’s best interest and reflexively instructs the trial court to award joint custody in almost every case, regardless of the needs of any particular child or any particular family. Joint custody is great sometimes. It is also terrible sometimes. Joint custody does not work for every case and HB 4691 will frankly be a disaster for children and families.
Interestingly, some of my colleagues have done research and have learned that joint custody is already becoming more common. By way of comparison between statistics in 1990 and 2015 the percent of custody award to the mother, father, joint, or third party:
As observed in these statistics, the trial courts have dramatically increased the percent of time that they award joint custody. To me, this shows that the system we currently have in place, does not need to be thrown out the window, as HB 4691 would do. This significant progress happened under a Child Custody Act that has remained relatively static. This suggests that our current laws don't need reforming. Instead, the change has been in societal and judicial attitudes. The one thing that has changed over the time-frame shown by these numbers is the creation of the family division with judges who have specialized knowledge. It isn't perfect, of course. We still have the problem of rotation and of new judges newly elected or appointed to the bench being assigned to the family division even if they have no interest or experience in the area of family law. Many family law attorneys have concluded that if we want to continue this trend toward gender equity in custody awards, we need for focus on court structure and judicial education issues, not messing with the best interests factors or presumptions, which we think are already gender neutral.
Also, as an appellate attorney, we think HB 4691 would create a ton of work for our law practice. There are so many terms that are defined in the law that it will create a lot of appellate litigation. The legislation is frankly very confusing, which will also give appellate attorneys a field day. Yet my concern for families and children of this state overrides any potential increase in business my firm would receive from the passage of HB 4691.