Bill Text: MI HB4197 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Family law; parenting time; great-grandparenting time; provide for. Amends secs. 2 & 7b of 1970 PA 91 (MCL 722.22 & 722.27b).

Spectrum: Moderate Partisan Bill (Democrat 4-1)

Status: (Introduced - Dead) 2009-02-10 - Printed Bill Filed 02/06/2009 [HB4197 Detail]

Download: Michigan-2009-HB4197-Introduced.html

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HOUSE BILL No. 4197

 

February 5, 2009, Introduced by Reps. Espinoza, Leland, Polidori, Roberts and McMillin and referred to the Committee on Families and Children's Services.

 

     A bill to amend 1970 PA 91, entitled

 

"Child custody act of 1970,"

 

by amending sections 2 and 7b (MCL 722.22 and 722.27b), section 2

 

as amended by 2005 PA 327 and section 7b as amended by 2006 PA 353.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2. As used in this act:

 

     (a) "Active military duty" means when a reserve unit member or

 

national guard unit member is called into active military duty.

 

     (b) "Agency" means a legally authorized public or private

 

organization, or governmental unit or official, whether of this

 

state or of another state or country, concerned in the welfare of

 

minor children, including a licensed child placement agency.

 

     (c) "Attorney" means, if appointed to represent a child under

 

this act, an attorney serving as the child's legal advocate in a

 

traditional attorney-client relationship with the child, as

 

governed by the Michigan rules of professional conduct. An attorney

 

as defined under this subdivision owes the same duties of undivided

 

loyalty, confidentiality, and zealous representation of the child's

 

expressed wishes as the attorney would to an adult client.

 

     (d) "Child" means minor child and children. Subject to section

 

5b of the support and parenting time enforcement act, 1982 PA 295,

 

MCL 552.605b, for purposes of providing support, child includes a

 

child and children who have reached 18 years of age.

 

     (e) "Grandparent" means a natural or adoptive parent of a the

 

child's natural or adoptive parent, or a great-grandparent.

 

     (f) "Great-grandparent" means a natural or adoptive

 

grandparent of the child's natural or adoptive parent.

 

     (g) (f) "Guardian ad litem" means an individual whom the court

 

appoints to assist the court in determining the child's best

 

interests. A guardian ad litem does not need to be an attorney.

 

     (h) (g) "Lawyer-guardian ad litem" means an attorney appointed

 

under section 4. A lawyer-guardian ad litem represents the child,

 

and has the powers and duties, as set forth in section 4.

 

     (i) (h) "Parent" means the natural or adoptive parent of a the

 

child.

 

     (j) (i) "State disbursement unit" or "SDU" means the entity

 

established in section 6 of the office of child support act, 1971

 

PA 174, MCL 400.236.

 

     (k) (j) "Third person" means an individual other than a

 

parent.

 

     Sec. 7b. (1) A child's grandparent may seek a grandparenting

 

time order under 1 or more of the following circumstances:

 

     (a) An action for divorce, separate maintenance, or annulment

 

involving the child's parents is pending before the court.

 

     (b) The child's parents are divorced, separated under a

 

judgment of separate maintenance, or have had their marriage

 

annulled.

 

     (c) The child's parent who is a child or grandchild of the

 

grandparents grandparent is deceased.

 

     (d) The child's parents have never been married, they are not

 

residing in the same household, and paternity has been established

 

by the completion of an acknowledgment of parentage under the

 

acknowledgment of parentage act, 1996 PA 305, MCL 722.1001 to

 

722.1013, by an order of filiation entered under the paternity act,

 

1956 PA 205, MCL 722.711 to 722.730, or by a determination by a

 

court of competent jurisdiction that the individual is the father

 

of the child.

 

     (e) Except as otherwise provided in subsection (13), legal

 

custody of the child has been given to a person other than the

 

child's parent, or the child is placed outside of and does not

 

reside in the home of a parent.

 

     (f) In the year preceding the commencement of an action under

 

subsection (3) for grandparenting time, the grandparent provided an

 

established custodial environment for the child as described in

 

section 7, whether or not the grandparent had custody under a court

 

order.

 

     (2) A court shall not permit a parent or grandparent of a

 

father who has never been married to the child's mother to seek an

 

order for grandparenting time under this section unless the father

 

has completed an acknowledgment of parentage under the

 

acknowledgment of parentage act, 1996 PA 305, MCL 722.1001 to

 

722.1013, an order of filiation has been entered under the

 

paternity act, 1956 PA 205, MCL 722.711 to 722.730, or the father

 

has been determined to be the father by a court of competent

 

jurisdiction. The court shall not permit the parent or grandparent

 

of a putative father to seek an order for grandparenting time

 

unless the putative father has provided substantial and regular

 

support or care in accordance with the putative father's ability to

 

provide the support or care.

 

     (3) A grandparent seeking a grandparenting time order shall

 

commence an action for grandparenting time, as follows:

 

     (a) If the circuit court has continuing jurisdiction over the

 

child, the child's grandparent shall seek a grandparenting time

 

order by filing a motion with the circuit court in the county where

 

the court has continuing jurisdiction.

 

     (b) If the circuit court does not have continuing jurisdiction

 

over the child, the child's grandparent shall seek a grandparenting

 

time order by filing a complaint in the circuit court for the

 

county where the child resides.

 

     (4) All of the following apply to an action for grandparenting

 

time under subsection (3):

 

     (a) The complaint or motion for grandparenting time filed

 

under subsection (3) shall be accompanied by an affidavit setting

 

forth facts supporting the requested order. The grandparent shall

 

give notice of the filing to each person who has legal custody of,

 

or an order for parenting time with, the child. A party having

 

legal custody may file an opposing affidavit. A hearing shall be

 

held by the court on its own motion or if a party requests a

 

hearing. At the hearing, parties submitting affidavits shall be

 

allowed an opportunity to be heard.

 

     (b) In order to give deference to the decisions of fit

 

parents, it is presumed in a proceeding under this subsection that

 

a fit parent's decision to deny grandparenting time does not create

 

a substantial risk of harm to the child's mental, physical, or

 

emotional health. To rebut the presumption created in this

 

subdivision, a grandparent filing a complaint or motion under this

 

section must prove by a preponderance of the evidence that the

 

parent's decision to deny grandparenting time creates a substantial

 

risk of harm to the child's mental, physical, or emotional health.

 

If the grandparent does not overcome the presumption, the court

 

shall dismiss the complaint or deny the motion.

 

     (c) If a court of appellate jurisdiction determines in a final

 

and nonappealable judgment that the burden of proof described in

 

subdivision (b) is unconstitutional, a grandparent filing a

 

complaint or motion under this section must prove by clear and

 

convincing evidence that the parent's decision to deny

 

grandparenting time creates a substantial risk of harm to the

 

child's mental, physical, or emotional health to rebut the

 

presumption created in subdivision (b).

 

     (5) If 2 fit parents sign an affidavit stating that they both

 

oppose an order for grandparenting time, the court shall dismiss a

 

complaint or motion seeking an order for grandparenting time filed

 

under subsection (3). This subsection does not apply if 1 of the

 

fit parents is a stepparent who adopted a child under the Michigan

 

adoption code, chapter X of the probate code of 1939, 1939 PA 288,

 

MCL 710.21 to 710.70, and the grandparent seeking the order is the

 

natural or adoptive parent or grandparent of a parent of the child

 

who is deceased or whose parental rights have been terminated.

 

     (6) If the court finds that a grandparent has met the standard

 

for rebutting the presumption described in subsection (4), the

 

court shall consider whether it is in the best interests of the

 

child to enter an order for grandparenting time. If the court finds

 

by a preponderance of the evidence that it is in the best interests

 

of the child to enter a grandparenting time order, the court shall

 

enter an order providing for reasonable grandparenting time of the

 

child by the grandparent by general or specific terms and

 

conditions. In determining the best interests of the child under

 

this subsection, the court shall consider all of the following:

 

     (a) The love, affection, and other emotional ties existing

 

between the grandparent and the child.

 

     (b) The length and quality of the prior relationship between

 

the child and the grandparent, the role performed by the

 

grandparent, and the existing emotional ties of the child to the

 

grandparent.

 

     (c) The grandparent's moral fitness.

 

     (d) The grandparent's mental and physical health.

 

     (e) The child's reasonable preference, if the court considers

 

the child to be of sufficient age to express a preference.

 

     (f) The effect on the child of hostility between the

 

grandparent and the parent of the child.

 

     (g) The willingness of the grandparent, except in the case of

 

abuse or neglect, to encourage a close relationship between the

 

child and the parent or parents of the child.

 

     (h) Any history of physical, emotional, or sexual abuse or

 

neglect of any child by the grandparent.

 

     (i) Whether the parent's decision to deny, or lack of an offer

 

of, grandparenting time is related to the child's well-being or is

 

for some other unrelated reason.

 

     (j) Any other factor relevant to the physical and

 

psychological well-being of the child.

 

     (7) If the court has determined that a grandparent has met the

 

standard for rebutting the presumption described in subsection (4),

 

the court may refer that grandparent's complaint or motion for

 

grandparenting time filed under subsection (3) to domestic

 

relations mediation as provided by supreme court rule. If the

 

complaint or motion is referred to the friend of the court

 

mediation service and no settlement is reached through friend of

 

the court mediation within a reasonable time after the date of

 

referral, the complaint or motion shall be heard by the court as

 

provided in this section.

 

     (8) A grandparent may not file more than once every 2 years,

 

absent a showing of good cause, a complaint or motion under

 

subsection (3) seeking a grandparenting time order. If the court

 

finds there is good cause to allow a grandparent to file more than

 

1 complaint or motion under this section in a 2-year period, the

 

court shall allow the filing and shall consider the complaint or

 

motion. Upon motion of a person, the court may order reasonable

 

attorney fees to the prevailing party.

 

     (9) The court shall not enter an order prohibiting an

 

individual who has legal custody of a child from changing the

 

domicile of the child if the prohibition is primarily for the

 

purpose of allowing a grandparent to exercise the rights conferred

 

in a grandparenting time order entered under this section.

 

     (10) A grandparenting time order entered under this section

 

does not create parental rights in the individual or individuals to

 

whom grandparenting time rights are granted. The entry of a

 

grandparenting time order does not prevent a court of competent

 

jurisdiction from acting upon the custody of the child, the

 

parental rights of the child, or the adoption of the child.

 

     (11) A court shall not modify or terminate a grandparenting

 

time order entered under this section unless it finds by a

 

preponderance of the evidence, on the basis of facts that have

 

arisen since entry of the grandparenting time order or were unknown

 

to the court at the time it entered that order, that a change has

 

occurred in the circumstances of the child or his or her custodian

 

and that a modification or termination of the existing order is

 

necessary to avoid creating a substantial risk of harm to the

 

mental, physical, or emotional health of the child. A court

 

modifying or terminating a grandparenting time order under this

 

subsection shall include specific findings of fact in its order in

 

support of its decision.

 

     (12) The court shall make a record of its analysis and

 

findings under subsections (4), (6), (8), and (11), including the

 

reasons for granting or denying a requested grandparenting time

 

order.

 

     (13) Except as otherwise provided in this subsection, adoption

 

of a child or placement of a child for adoption under the Michigan

 

adoption code, chapter X of the probate code of 1939, 1939 PA 288,

 

MCL 710.21 to 710.70, terminates the right of a grandparent to

 

commence an action for grandparenting time with that child.

 

Adoption of a child by a stepparent under the Michigan adoption

 

code, chapter X of the probate code of 1939, 1939 PA 288, MCL

 

710.21 to 710.70, does not terminate the right of the parent or

 

grandparent of a deceased parent of the child to commence an action

 

for grandparenting time with that child.