Michigan HB 4564 : Fair Parenting Act 2007

In many states around the country, bills have been introduced in legislatures that ask for family courts to order joint custody of children in divorce as a default, or assumed, position, rather than granting full custody and visitation to one parent or the other. It is generally referred to as the “Fair Parenting Act”, and it is much like the Uniform Parenting Act, which also seeks to reduce controversy and acrimony in divorce and custody cases. Essentially, both proposed acts, if passed, would offer fathers a benefit of the doubt in such cases where none currently exists.

Below you will find a portion of the HB 4564 and then the comments of its most vocal opponents. I will rebut this opposition at the end to show just how vacuous their ‘reasoning’ has become.

HB 4564 (Proposed)

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 6a. (1) In a custody dispute between parents, the court shall order joint custody unless either of the following applies:

(a) The court determines by clear and convincing evidence that a parent is unfit, unwilling, or unable to care for the child.

(b) A parent moves his or her residence outside the school district that the child attended during the 1-year period preceding the initiation of the action and is unable to maintain the child's school schedule without interruption. If a parent is unable to maintain the child's school schedule, the court shall order that the parents submit the dispute to mediation to determine a custody agreement that maximizes both parents' ability to participate equally in a relationship with the child while accommodating the child's school schedule. A parent may restore joint custody by demonstrating the ability to maintain the child's school schedule.

(2) (1) In If subsection (1) does not apply in a custody disputes dispute between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody, and shall state on the record the reasons for granting or denying a request.

This next part comes from the National Organization of Women (Now) who, not surprisingly, opposes any measure that would grant fathers a greater share of parenting time with the children. I honestly thought they could have done better, but who am I to tell them what to do? Here it is:

HB 4564 has serious consequences women and their children as well as victims of domestic violence. Action is needed NOW! We need you to contact your legislator by letter, email or phone and urge them to OPPOSE HB 4564.

If you go to their national (or state) website, NOW does not explain how giving joint custody or HB 4564 in general would effect the existing domestic violence statutes. If you read the bill, and can comprehend even just a fraction of it, there is no preclusion from asking the court to review the individual case and set custody or visitation accordingly. There is no explicit or implied clause in HB 4564 that prevents a mother (or father for that matter) from seeking the court’s permission to restrict access or visitation based upon extenuating circumstances that may arise. HB 4564 simply allows a father, as a parent, to have the presumption of equal footing in the deciding of custodial and visitation issues.

They continue:

Joint custody is based on several assumptions, which are:

* That both parents were active co-parents before the divorce or separation;

Active co-parents? I don’t know what that means exactly. Is ‘active’ determined by time, by money, or by effort? If a parent is away at work, earning the money that pays the household bills and provides the means by which the child thrives, wouldn’t that also count as ‘active’ parenting? And, why does NOW assume that one parent is ‘non-active’ and not both? If you don’t know for sure, without a hearing, then how can you assume that either parent isn’t ‘active’? It makes no sense.

* That both parents are skilled negotiators who can put their feelings aside and put the needs of their children before their own;

Once again, how do they know that the mother can put aside her feelings any more or less than would the child’s father? By their logic, neither parent should be assumed capable of such stoic fortitude. Besides, the parents aren’t negotiating anything. It will be the family court ordering joint custody based upon relative and fair assumptions unless, or course, evidence exists to preclude such an order.

*That the best and only way for both parents to be active in a child’s life is through joint custody;

Do they think that the best way for divorced parents to raise their child is for one parent to see his or her child two weekends a month? If ‘active’ is their criteria for custody, as it shows a healthy and strong parental bond, then why do they insist on one parent, usually the father, becoming ‘inactive’ by court order? Joint custody is the best way; equal time, equal exposure, and equal responsibility. Best for everyone involved. I cannot understand how separating a child from a competent loved one does any good for anyone.

* That the need for a child to have both parents in their life supersedes the child’s need for safety and stability.

Where do they think safety and stability come from? Could it be from parents? Do they really think that separating a decent parent from his or her child or limiting access without good reason is somehow creating a ‘stable’ environment? I don’t think it can get crazier than this. Children don’t look to courts, to the police, to the lawyers, or to NOW for safety and stability. They look to their parents who, under the unfortunate circumstances of divorce, must continue best they can to provide that emotional and physical security. Once again, HB 4564 does not prevent one parent from suing for sole custody or questioning the court’s decision.

I think that HB 4564 and similar bills are going to change family law for the better. Too often, a parent goes into court and is accused of something inappropriate or even criminal as a means to extract concessions or deny visitation. In English law, divorce fell under what was known then as ‘Fairness Laws’ where the decisions were made by judges, not based upon evidence, but by what was considered fair or, as we put it today, in the best interest of the child. They did this to streamline their overloaded court dockets. There were no evidentiary hearings or trials, just the administrative posturing.

HB 45664 doesn’t do away with fairness or the best interest of the child. It does however, demand that a father or mother, receive equal consideration in the interests of that child unless evidence suggests that one, or both, are unfit or unable to fulfill the requisite requirements to maintain joint custodial input.