Henry Gornbein

Tales from the Front Lines

Q; I have heard that there is proposed legislation to mandate 50/50 joint custody in almost every divorce and custody matter. Is that correct?

A; At a recent meeting of the Michigan Chapter of the American Academy of Matrimonial Lawyers, which is an organization of the leading matrimonial lawyers throughout the United States, we discussed this issue at length. I asked Diana Raimi, a fellow member who has analyzed the proposal extensively, to write about it. Following is her detailed analysis of what is wrong with the proposal on child custody:

Proposed child custody bill will harm Michigan children

A recently separated divorcing couple has two children. Mom is depressed and inattentive, usually gets the kids to school late and never helps with homework. When with her, the children often miss sports practices and social activities. Dad is reliable and involved. He coaches soccer, helps with schoolwork and takes care of all the kids’ medical and other appointments. Yet HB 4691, introduced by Rep. Jim Runestad over the summer, would require the kids to spend substantially equal time with Mom.

A never-married couple has a 2-year-old daughter. Dad has four children with three different mothers. He doesn’t pay support, but stops by unannounced to visit the child every few weeks, sometimes bringing gifts. Under HB 4691, dad would get substantially equal parenting time.

HB 4691 threatens to throw out 47 years of precedent, replacing our state’s child-centered custody law with one that focuses on “fairness” to parents – by a rigid count of overnights – instead of considering the best interests of the child. It sacrifices protection of Michigan’s children in favor of a one-size-fits-all rule requiring substantially equal parenting time in most cases, unless one parent can prove domestic violence, abuse, neglect or a few other extreme conditions. If passed, this bill will cause a flood of litigation by re-opening old cases and inviting arguments over its vague, contradictory and untested language.

Why is this bill so dangerous?

It places the interests of parents over the interests of children, eliminating existing well-understood definitions of “best interests of the child” and even deleting existing law’s requirement that all decisions be guided by the child’s best interest. It takes away judges’ discretion to look at each family’s individual situation and instead imposes rigid overnight-counting requirements that apply in all cases, except the most extreme circumstances. It could have retroactive effect, opening the door for thousands of parents to return to court for another trial long after their cases concluded. It destroys our current law’s protection of continuity for children, inviting prolonged litigation that could repeatedly uproot children. It provides a powerful “bargaining chip” for domestic abusers to control and intimidate their spouses or partners, using the children as pawns in the process. It ignores the reality of the child’s experience in deciding a parenting schedule, focusing instead on parent-centered factors like financial contributions. It gives unrelated roommates, or live-in boyfriends or girlfriends, the same rights as parents when a military parent is deployed — even if that person would normally never have the right to ask for parenting time.

Runestad claims his bill is needed to correct an entrenched bias in our family court system that favors mothers over fathers and disregards children’s need for substantial contact with both parents. But the overwhelming trend in Michigan is already toward joint custody. Between 1990 and 2015, the share of Michigan cases granting joint custody increased from 13 percent to 44 percent. More recent statistics, when available, will doubtless show that for children with two fit, caring parents, substantially shared parenting is rapidly becoming the norm. Backers of HB 4691 simply cannot show that there is a significant problem that requires fixing – let alone a “fix” as damaging as this bill.

Proponents of HB 4691 claim that it allows courts flexibility to weigh factors such as whether a child is a nursing infant, the burden on children of travel or the parents’ mental health. This is untrue: under the bill’s “fine print,” a court cannot even consider factors such as these in most cases in the absence of domestic violence or other serious threats to the child’s welfare. HB 4691 is opposed by at least 50 organizations, including the State Bar Family Law Section, Michigan Judges Association, Michigan Probate Judges, American Academy of Matrimonial Lawyers and more than a dozen domestic violence and poverty advocacy groups. Yet the bill has cleared the Judiciary Committee and may come up for a vote soon.

Henry S. Gornbein specializes in all aspects of family law. He is a partner in the Birmingham law firm of Lippitt O'Keefe Gornbein PLLC, where he heads the family law unit. He is creator and host of the award-winning cable television show "Practical Law," with more than 800 episodes aired to date. He is the author of the book "Divorce Demystified, Everything You Need To Know Before You File For Divorce." Contact him at hgornbein@lippittokeefe.com or 248-646-8292.