8.4Effect of Domestic Abuse on Child Custody Determinations
The principle authority for resolving child custody disputes in Michigan is the Child Custody Act of 1970, MCL 722.21 et seq. MCL 722.24(1). The Child Custody Act directs that in establishing parental rights and duties as to custody and parenting time of a minor child, “the best interests of the child control.” MCL 722.25(1). See also MCL 722.27(1); MCL 722.27a(1). “Domestic violence,[1] regardless of whether the violence was directed against or witnessed by the child[,]” is one of several best interests factors the court must consider in determining the best interests of a child under the Child Custody Act, MCL 722.23(k).2 Note, however, that MCL 600.2950(1)(l)3 provides the court with the authority to issue a personal protection order (PPO) that affects a respondent’s custody or parenting time without consideration of the best interests factors, MCL 722.23.4 See Brandt v Brandt, 250 Mich App 68, 70-71 (2002) (trial court had the authority to issue a PPO restricting the respondent-father’s contact with his children under MCL 600.2950(1)(l), without applying the best interests factors under the Child Custody Act because the trial court was not making a child custody determination, but rather issuing an emergency order that temporarily awarded the plaintiff-mother custody of the children and granted the respondent-father parenting time “until the divorce proceeding was initiated so that the children might be protected from physical violence or emotional violence or both”).
Note: The Federal Parent Locator Service (FPLS), 42 USC 653, which is a national computer matching system operated by the Federal Office of Child Support Enforcement, may be used to obtain and transmit information for making or enforcing a child custody or parenting time determination. 42 USC 653(a).5
According to the Model Code on Domestic and Family Violence, Section 402, p 33, a guide that the National Council of Juvenile and Family Court Judges developed to promote protection and safety of victims of domestic violence or family violence, the court should consider the following before it issues custody or visitation in domestic violence cases:
“Sec. 402. Factors in determining custody and visitation.
1. In addition to other factors that a court must consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of domestic or family violence:
(a) The court shall consider as primary the safety and well-being of the child and of the parent who is the victim of domestic or family violence.
(b) The court shall consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.
2. If a parent is absent or relocates because of an act of domestic or family violence by the other parent, the absence or relocation is not a factor that weighs against the parent in determining custody or visitation.”
A.Impact of Domestic Violence on Child Custody Disputes
“In order to resolve a child custody dispute, a trial court must evaluate the best interests of the child in light of the factors in MCL 722.23[.]” McIntosh v McIntosh, 282 Mich App 471, 478 (2009). Specifically, MCL 722.23(k) requires the court to “consider[], evaluate[], and determine[]” whether “[d]omestic violence [is present], regardless of whether the violence was directed against or witnessed by the child[,]” and MCL 722.23(j) prohibits the court from negatively considering “any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent[]” for purposes of evaluating the parties’ “willingness and ability . . . to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.”
1.Joint Custody6 Determination
“In [child] custody disputes between parents, the parents shall be advised of joint custody[, and] [a]t 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.”7 MCL 722.26a(1).
“The court shall determine whether joint custody is in the best interest of the child by considering[:]”
•the best interests of the child factors as set out under MCL 722.23, and
•“[w]hether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.” MCL 722.26a(1).
The Model Code on Domestic and Family Violence, Sections 401 and 403, p 33-34, provide the following presumptions concerning custody of the child(ren) in domestic relations cases involving domestic violence:
“Sec. 401. Presumptions concerning custody.
In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence.
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Sec. 403. Presumption concerning residence of child.
In every proceeding where there is at issue a dispute as to the custody of a child, a determination by a court that domestic or family violence has occurred raises a rebuttable presumption that it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic or family violence in the location of that parent's choice, within or outside the state.”
2.Modifying Child Custody Determination
To modify a child custody determination, the court must determine “‘that the party seeking the change has demonstrated either a proper cause shown[8] or a change of circumstances’”9 before the trial court reconsiders the best interests of the child factors.10 Vodvarka v Grasmeyer, 259 Mich App 499, 508 (2003), quoting Dehring v Dehring, 220 Mich App 163, 165 (1996).
The Model Code on Domestic and Family Violence, Section 404, p 34, provides that “[i]n every proceeding in which there is at issue the modification of an order for custody or visitation of a child, the finding that domestic or family violence has occurred since the last custody determination constitutes a finding of a change of circumstances.”
3.Standard of Review Regarding Best Interest Factors
“To expedite the resolution of a child custody dispute by prompt and final adjudication[,]” MCL 722.28 requires that deference be given to the trial court’s decision regarding child custody, unless the trial court “made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” See also Fletcher v Fletcher, 447 Mich 871, 877 (1994) (holding that in child custody cases, “[f]indings of fact are to be reviewed under the ‘great weight’ standard, discretionary rulings are to be reviewed for ‘abuse of discretion,’ and questions of law for ‘clear legal error’”). Because “[t]he great weight of the evidence standard applies to all findings of fact [in child custody cases,] . . . a trial court’s findings on each [best interest] factor should be affirmed unless the evidence ‘clearly preponderates in the opposite direction.’” Id. at 889. See also Sabatine v Sabatine, ___ Mich ___, ___ (2024) (holding that the Court of Appeals erred by reversing the parenting time provisions in the trial court’s divorce judgment, because “the trial courts . . . are typically in the best position to analyze the factual complexities of child-custody cases,” and “the Court of Appeals failed to give proper deference to the trial court’s findings of fact”).
The following cases illustrate the trial court’s evaluation of the domestic violence best interest factor, MCL 722.23(k), when making its child custody determination:11
•Court of Appeals upheld the trial court’s determination that the domestic violence factor, MCL 722.23(k), was neutral to both the plaintiff-mother and the defendant-father where “[t]he trial court’s factual finding that [the plaintiff-mother testifying to three alleged acts of domestic violence and the defendant-father testifying to a different version of each act] did not amount to domestic violence[.]” Kessler v Kessler, 295 Mich App 54, 67 (2011).
•Court of Appeals upheld the trial court’s determination that the domestic violence factor, MCL 722.23(k), favored the defendant-mother where the trial court found that “[t]here was evidence that there was at least one incident of domestic violence in the home perpetrated by the [plaintiff-]father against the [defendant-]mother[;] . . . [t]here was at least one conviction for domestic violence in the history of [the plaintiff-father’s and the defendant-mother’s] relationship[, resulting from a physical altercation between the plaintiff-father and the stepson; and] . . . [t]here was no other testimony of domestic violence perpetrated by the [defendant-]mother against the [plaintiff-]father” outside of the plaintiff-father’s testimony that the defendant-mother threw glass at him on one occasion. McIntosh, 282 Mich App at 481-482 (internal quotation marks omitted).
•Court of Appeals upheld the trial court’s determination that the domestic violence factor, MCL 722.23(k), favored the plaintiff-father where “[b]oth parents admitted [to] spanking the child[, but] . . . the child witnessed [the] defendant[-mother] physically attack [the] plaintiff[-father]” when she “knock[ed] [the] plaintiff[-father] on the arm with an iron[,]” “thr[e]w[] cold coffee at [the] plaintiff[-father] while the child was nearby[,]” “[the] defendant[-mother] did not deny these allegations of domestic violence[,]” and the defendant-mother “lock[ed] the child in his room overnight as punishment with a can in which to relieve himself[.]”12 MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 457 n 26, 459 (2005).
•Court of Appeals upheld the trial court’s determination that the domestic violence factor, MCL 722.23(k), favored the defendant-mother where the plaintiff-father’s corporal punishment—spanking the children with a PVC pipe and leaving red marks and sometimes bruises—inflicted physical injury on members of his household and also inflicted mental harm because it combined “cruelty and serious physical harm with expressions of love[.]” Brown v Brown, 332 Mich App 1, 13 (2020). Further, plaintiff’s conduct constituted domestic violence even if the corporal punishment was carried out on the basis of religious beliefs and without malicious intent. Id. Additionally, the trial court did not err by considering the plaintiff-father’s abusive treatment of family pets when considering domestic violence; while “[h]armful or abusive conduct toward an animal is not per se domestic violence,” it “can constitute domestic violence under either MCL 400.1501(d)(i) or MCL 400.1501(d)(iv),[13] if done for the purpose of distressing or coercing a person emotionally bonded to that pet.” Brown, 332 Mich App at 14-15.
“[T]he trial court’s error [in failing to consider the domestic violence factor, MCL 722.23(k), when determining a child custody dispute] was harmless [where] the isolated instances in which [the] plaintiff[-father] allegedly argued with [the] defendant[-mother] d[id] not support a finding of domestic violence.” Winn v Winn (Winn I), 234 Mich App 255, 260 n 4 (1999), vacated on other grounds Winn v Winn (Winn II), 459 Mich 1002 (1999).14
“Where a trial court fails to consider custody issues in accordance with the mandates set forth in MCL 722.23 ‘and make reviewable findings of fact, the proper remedy is to remand for a new child custody hearing.’” Foskett v Foskett, 247 Mich App 1, 10, 12-13 (2001), quoting Bowers v Bowers (Bowers I), 190 Mich App 51, 56 (1991) (“the trial court abused its discretion by changing the children’s custodial environment without the attendant clear and convincing evidence presented to justify the substance of the trial court’s ultimate decision and disposition” where “[t]he only conceivable explanation to account for the stark difference between the evidence presented on the record that amounted to nothing more than mere allegations of the [plaintiff-]mother’s violent conduct and the trial court’s conclusions that the mother ha[d] a ‘volatile,’ ‘nasty’ temper and further exhibit[ed] signs of mental illness, [was] the intervening in camera interview with the children that was not, in any way, made part of the reviewable record”).15
A trial court is required to consider a child’s reasonable preference as to custody when determining what is in the child’s best interests if the court finds the child to be of a sufficient age to express a preference. Quint v Quint, ___ Mich App ___, ___ (2024). Six-year-old children are presumed to be able to express a reasonable preference. Id. at ___. If the court concludes that the child could not express a preference, it must explain why it drew such a conclusion. Id. at ___. In Quint, the trial court declined to consider the reasonable preference of the seven-year-old child involved in the dispute under MCL 722.23(i) because the parties did not request a child interview and the trial court had reservations about interviewing a child that age. Quint, ___ Mich App at ___. The Court of Appeals reasoned that “[a]lthough child-custody proceedings differ from child-protective proceedings, there are certain material similarities, including a focus on the best interests of the child,” and, thus, “judicial prudence favors applying the plain-error standard to an unpreserved claim in a child-custody proceeding.” Id. at ___. In applying the plain-error test, the Quint Court found that, although not a party to a custody dispute, the child has a substantial right conferred by the legislature “to have his or her own voice heard in a child-custody proceeding,” and “even if the child’s preference does not carry the day, there is independent value in knowing on some level that one’s voice has been heard.” Id. at ___.16
B.Impact of Domestic Violence on Parenting Time Determinations
1.Determining Parenting Time Terms
“Both the statutory best interest factors in the Child Custody Act, MCL 722.23, and the factors listed in the parenting time statute, [MCL 722.27a(7)17], are relevant to parenting time decisions.” Shade v Wright, 291 Mich App 17, 31 (2010). See also MCL 722.27a(1), which requires:
•“parenting time [to] be granted in accordance with the best interests of the child[,]” as set out under MCL 722.23,18 and with a presumption that it is “in the best interests of a child for the child to have a strong relationship with both of his or her parents[,]” and
•“[e]xcept as otherwise provided in [MCL 722.27a], parenting time [to] be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.”
Note: Although “[c]ustody decisions require findings under all of the best interest factors, . . . parenting time decisions may be made with findings on only the contested issues.” Shade, 291 Mich App at 31-32 (where an order modifying parenting time does not result in a change of custody, the trial court does not need to address the child custody best interest factors in MCL 722.23; where “it [is] clear from the trial court statement’s on the record that the trial court was considering the minor child’s best interests in modifying [the parent’s] parenting time[,]” a trial court may not need to explicitly address the parenting time factors in MCL 722.27a).
MCL 722.27a(7)19 sets out certain factors the court may consider “when determining the frequency, duration, and type of parenting time to be granted[,]” which include, among others:20
•“The reasonable likelihood of abuse or neglect of the child during parenting time.” MCL 722.27a(7)(c). See Sturgis v Sturgis, 302 Mich App 706, 714-715 (2013), reversing the trial court’s order reinstating the defendant’s parenting time upon holding that “the trial court’s findings with regard to a reasonable likelihood of abuse or neglect were against the great weight of the evidence and that the court committed a palpable abuse of discretion” where the court record “strongly suggest[ed] a ‘reasonable likelihood of abuse or neglect of the child during parenting time[, and]’ . . . [the] defendant’s history of violence, repugnant disciplinary tactics, and outright denial of culpability, indicate[d] a strong likelihood of continued abuse[.]”
Note: In Sturgis, 302 Mich App at 712, 714-715,“[t]he record reveal[ed] that [the] defendant ha[d] at least two prior criminal sexual conduct convictions, . . . he failed to register as a sex offender as required by state law[,]” he had his parental rights terminated over two other children due to abuse,21 his “two children now at issue . . . clearly exhibited behavioral and emotional problems resulting from [the] defendant’s conduct[,]” and the defendant’s son expressed that he did not want to “be in [the] defendant’s care[.]”
•“The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.”MCL 722.27a(7)(d).
•“The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.” MCL 722.27a(7)(h).
“If the parents of a child agree on parenting time terms, the court shall order the parenting time terms unless the court determines on the record by clear and convincing evidence that the parenting time terms are not in the best interests of the child.” MCL 722.27a(2).
“A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child’s physical, mental, or emotional health.” MCL 722.27a(3).
MCL 722.27a(9)22 sets out certain reasonable terms or conditions a court may include in a parenting time order in order to “facilitate the orderly and meaningful exercise of parenting time by a parent,” which include, among others:23
•restricting “the presence of third persons during parenting time.” MCL 722.27a(9)(c).
•requiring parenting time to occur “in the presence of a third person or agency.” MCL 722.27a(9)(f). See also Booth v Booth, 194 Mich App 284, 293 (1992), mod on other grounds by Eddie v Eddie, 201 Mich App 509, 511-512 (1993)24 (“trial court did not abuse its discretion in ordering supervised visitation” where the defendant-father admitted to striking his five-year-old child with a belt on at least one occasion, and the plaintiff-mother testified that the defendant-father hit their child when he was six or seven weeks old and that the defendant-father was placed in jail for physically abusing the plaintiff-mother).
Note: In cases involving PPOs, The Michigan Parenting Time Guideline, p 26, a publication by the State Court Administrative Office, Friend of the Court Bureau, promulgated for use in the Michigan Friend of the Court offices, requires “[the] parenting time exchanges [to] occur (if permitted by the order) in a manner which ensures the order is not violated.”25
MCL 722.27a(10) requires parenting time orders to contain a provision that prohibits a parent from exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Abduction, unless both parents provide the court with written consent permitting otherwise. For additional information on Hague Convention, see Section 8.6(B)(2).
In drafting an order for parenting time in domestic violence cases, the court might consider the following options to enhance safe enforcement of its orders:
•Avoid non-specific provisions such as “reasonable parenting time,” “parenting time as agreed by the parties,” or “parenting time to be arranged later.” The parenting time order terms should be stated unambiguously, with pick-up and drop-off locations, times, and days of the week clearly stated.
•Provide for supervised parenting time with the supervising third-parties clearly identified.
•Provide safe, neutral locations for parenting time, whether supervised or unsupervised.
•Specify how the parties may communicate with each other to make arrangements for parenting time.
•Arrange parenting time so that the parties will not meet.
•If the parties must meet to transfer the child(ren), require that the transfer take place in the presence of a third party and in a protected setting.
•Build in automatic return dates for the court to review how the parenting time order is working.
According to the Model Code on Domestic and Family Violence, Section 405, pp 34-35, the court should consider the following before it issues visitation in domestic violence cases:
“Sec. 405. Conditions of visitation in cases involving domestic and family violence.
l. A court may award visitation by a parent who committed domestic or family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made.
2. In a visitation order, a court may:
(a) Order an exchange of a child to occur in a protected setting.
(b) Order visitation supervised by another person or agency.
(c) Order the perpetrator of domestic or family violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators or other designated counseling as a condition of the visitation.
(d) Order the perpetrator of domestic or family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding the visitation.
(e) Order the perpetrator of domestic or family violence to pay a fee to defray the costs of supervised visitation.
(f) Prohibit overnight visitation.
(g) Require a bond from the perpetrator of domestic or family violence for the return and safety of the child.[26]
(h) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of domestic or family violence, or other family or household member.
3. Whether or not visitation is allowed, the court may order the address of the child and the victim to be kept confidential.
4. The court may refer but shall not order an adult who is a victim of domestic or family violence to attend counseling relating to the victim's status or behavior as a victim, individually or with the perpetrator of domestic or family violence as a condition of receiving custody of a child or as a condition of visitation.
5. If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation.”
2.Appointing Parenting Coordinator
“A parenting coordinator is a person appointed by the court for a specified term to help implement the parenting time orders of the court and to help resolve parenting disputes that fall within the scope of the parenting coordinator’s appointment.”27 MCL 722.27c(1).
MCL 722.27c(2) provides the court with authority to appoint a parenting coordinator where “the parties and the parenting coordinator agree to the appointment and its scope.” The court must “consider any history of a coercive or violent relationship between the parties” before ordering appointment of a parenting coordinator, and the court must “ensure that the order appointing the parenting coordinator provides adequate protection to the victim of a coercive or violent relationship.” Id.
a.Court Order Appointing Parenting Coordinator
“The order appointing a parenting coordinator shall include all of the following:
(a) An acknowledgment that each party has had the opportunity to consult with an attorney and a domestic violence counselor.
(b) An acknowledgment that the parenting coordinator is neutral; that the parenting coordinator may have ex parte communications with the parties, their attorneys, and third parties; that, except as provided in [MCL 722.27c(9)28], communications with the parenting coordinator are not privileged or confidential; and that by agreeing to the order, the parties are giving the parenting coordinator authority to make recommendations regarding disputes.
(c) A specific duration of the appointment. The order shall provide that the parenting coordinator may resign at any time due to nonpayment of his or her fee. The order may include a provision for extension of the parenting coordinator’s term by consent of the parties for specific periods of time.
(d) An explanation of the costs of the parenting coordinator, and each party’s responsibility for those costs, including any required retainer and fees for any required court appearances. The order may include a provision allowing the parenting coordinator to allocate specific costs to 1 party for cause.
(e) The scope of the parenting coordinator’s duties in resolving disputes between the parties. These may include any of the following:
(i) Transportation and transfers of the child between parents.
(ii) Vacation and holiday schedules and implementation.
(iii) Daily routines.
(iv) Activities and recreation.
(v) Discipline.
(vi) Health care management, including determining and recommending appropriate medical and mental health evaluation and treatment, including psychotherapy, substance use disorder and batterer intervention treatment or counseling, and parenting classes, for the child and the parents. The parenting coordinator shall designate whether any recommended counseling is or is not confidential. The parenting coordinator can recommend how any health care provider is chosen.
(vii) School-related issues.
(viii) Alterations in the parenting schedule, as long as the basic time-sharing arrangement is not changed by more than a specified number of days per month.
(ix) Phase in provision of court orders.
(x) Participation of other persons in parenting time.
(xi) Child care and babysitting issues.
(xii) Any other matters submitted to the parenting coordinator jointly by the parties before his or her appointment expires.
(f) Authorization for the parenting coordinator to have access that may include all of the following:
(i) Reasonable access to the child.
(ii) Notice of all proceedings, including requests for examinations affecting the child.
(iii) Access to a specific therapist of any of the parties or the child, provided that a proper release is executed.
(iv) Access to school, medical, and activity records.[29]
(v) Copies of specific evaluations and psychological test results performed on any child or any parent, custodian, guardian, or other person living in the parent’s households, including, but not limited to, friend of the court reports and psychological evaluations.[30]
(vi) Access to the child’s principal, teachers, and teachers’ aides.
(vii) The right to interview the parties, attorneys, or the child in any combination, and to exclude any party or attorney from an interview.
(viii) The right to interview or communicate with any other person the parenting coordinator considers relevant to resolve an issue or to provide information and counsel to promote the best interests of the child.
(g) The dispute resolution process that will be used by the parenting coordinator, explaining how the parenting coordinator will make recommendations on issues and the effect to be given to those recommendations. The process must ensure that both parties have an opportunity to be heard on issues under consideration by the parenting coordinator and an opportunity to respond to relevant allegations against them before a recommendation is made. The parties may agree that on specific types of issues they must follow a parenting coordinator's recommendations until modified by the court.” MCL 722.27c(3).
b.Duties of Parenting Coordinator
Make reasonable inquiry. In addition to the duties set out in the order appointing a parenting coordinator under MCL 722.27c(3),31 MCL 722.27c(7) requires the “parenting coordinator [to] make [a] reasonable inquiry [into] whether either party has a history of a coercive or violent relationship with the other party.”32 “If the parenting coordinator determines that there is a history of a coercive or violent relationship between the parties, the parenting coordinator shall not bring the parties within proximity of each other unless the party at risk from violence or coercion requests it and the parenting coordinator determines with that party what reasonable steps, if any, can be taken to address concerns regarding coercion or violence.” MCL 722.27c(8).
Make recommendations. “The parenting coordinator shall make his or her recommendations in writing and provide copies of the recommendation to the parties in the manner specified in the parenting coordination order. If a party attaches the recommendation to a motion or other filing, the court may read and consider the recommendation, but the recommendation is not evidence unless the parties stipulate that it is.” MCL 722.27c(10).
“The parenting coordinator is not required to disclose information if disclosure will compromise the safety of a party or a child[,]” and “[t]he parenting coordinator shall not recommend relief that is less protective than any other order related to the parties.” MCL 722.27c(9); MCL 722.27c(11).
Report suspected child abuse/child neglect. MCL 722.27c(13) requires the parenting coordinator to immediately report any suspected child abuse or child neglect to the DHS. See MCL 722.623, which sets out the mandatory reporting requirements under the Child Protection Law where child abuse or child neglect is suspected.
c.Parenting Coordinator Testimony
“Subject to the Michigan rules of evidence, the court may allow the testimony of the parenting coordinator if the court finds the testimony useful to the resolution of a pending dispute.” MCL 722.27c(12). Note, however, that the parenting coordinator must not testify to “statements received from a child involved in the parenting coordination if the parenting coordinator believes the disclosure would be damaging to the child.” Id. See also MCL 722.27c(9) (“The parenting coordinator is not required to disclose information if disclosure will compromise the safety of a party or a child.”).
d.Cessation of Parenting Coordinator Appointment
“The court may terminate the appointment of the parenting coordinator if the court finds that the appointment is no longer helpful to the court in resolving parenting disputes or if the process is no longer safe for a party or a child.” MCL 722.27c(4).
MCL 722.27c(5) also permits “[t]he parenting coordinator [to] resign at any time, with notice to the parties and to the court.”33
C.Impact of Criminal Sexual Conduct Convictions on Child Custody and Parenting Time Determinations
If a child is conceived “as the result of acts for which 1 of the child’s biological parents is convicted of criminal sexual conduct as provided in . . . MCL 750.520a to [MCL] 750.520e and [MCL] 750.520g, or a substantially similar statute of another state or the federal government, or is found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration, the court shall not [award custody or grant parenting time] to that biological parent.”34 MCL 722.25(2); MCL 722.27a(4).
“A parent may assert an affirmative defense of the provisions of [MCL 722.25(2) or MCL 722.27a(4)] in a proceeding brought by the offending parent regarding a child described in [MCL 722.25(2) or MCL 722.27a(4), respectively].” MCL 722.25(5); MCL 722.27a(5).
1.Exceptions to Absolute Prohibition
The absolute prohibitions provided for under MCL 722.25(2) and MCL 722.27a(4) do not apply if:
•the biological parent was convicted under MCL 750.520d(1)(a) of third degree criminal sexual conduct for sexual penetration of a victim who was at least 13 years of age and under 16 years of age; or
•“after the date of the conviction, or the date of the finding in a fact-finding hearing described in this subsection, the biological parents cohabit and establish a mutual custodial environment for the child.” MCL 722.25(2); MCL 722.27a(4).
“An offending parent is not entitled to custody of a child described in [MCL 722.25(2)] without the consent of that child’s other parent or guardian.” MCL 722.25(3).
“[I]f an individual is convicted of criminal sexual conduct as provided in . . . MCL 750.520a to [MCL] 750.520e and [MCL] 750.520g[,] and the victim is the individual’s child, the court shall not [award custody of or grant parenting time with] that child or a sibling of that child to that individual, unless both the child’s other parent, and if the court considers the child or sibling to be of sufficient age to express his or her desires, the child or sibling consent to the [custody or parenting time].” MCL 722.25(6); MCL 722.27a(6) (emphasis added).
2.Child Support or Maintenance Obligations
“Notwithstanding other provisions of [the Child Custody Act of 1970 (CCA)], [MCL 722.25(2)] does not relieve an offending parent of any support or maintenance obligation to the child. The other parent or the guardian of the child may decline support or maintenance from the offending parent.” MCL 722.25(4).
Where a defendant-stepparent is convicted of criminal sexual conduct against his or her stepchild, the stepchild is not considered the defendant-stepparent’s child for purposes of MCL 722.27a(6).35 DeVormer v DeVormer, 240 Mich App 601, 605-608 (2000). In id. at 606-608, the trial court erroneously denied the defendant-stepfather’s motion for parenting time with his biological child (the victim-stepchild’s half sibling) under MCL 722.27a(6) because the victim, the defendant-stepfather’s stepchild, could not be considered the defendant-stepfather’s child for purposes of MCL 722.27a(6). Specifically,
“[The] [d]efendant[-stepfather] admits that he has been convicted of an enumerated offense of criminal sexual conduct. The question is whether the victim of the offense of which he was convicted, [the] defendant[-stepfather’s] stepdaughter, is his ‘child’ under the statute. [MCL 722.27a(6)] does not define the term ‘child,’ but it is defined in [MCL 722.22(d)36] as ‘minor child and children.’ This definition does not address the issue presented in this case.
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[T]he statutory language in [MCL 722.27a(6)] is [not] ambiguous. The Legislature specified that in order for the statute to apply, the child victim must be ‘the individual’s child.’ The Legislature chose this narrow term rather than the broad terms it used to describe the relationship between the perpetrator and the victim in the [criminal sexual conduct] statutes. . . . [U]nder [MCL 722.27a(6)], in order for parenting time to be granted to an individual convicted of criminal sexual conduct involving that individual’s child, the ‘child’s other parent’ must consent. This phrase implies that there are only two parents of the child, suggesting either a biological parental relationship or a legal parental relationship, such as adoption, exists between the individual and the child victim. For all these reasons, . . . [MCL 722.27a(6)] can be interpreted only one way, and, therefore, it is not ambiguous. Under the plain language of the statute, [the] plaintiff[-mother’s] daughter is not [the] defendant[-stepfather’s] child for purposes of [MCL 722.27a(6)].” DeVormer, 240 Mich App at 605-608 (internal citations omitted).
D.Impact of Domestic Violence on Child Custody and Parenting Time Violations
A brief discussion on child custody and parenting time enforcements is contained in this subsection. For a more detailed discussion on civil remedies available to enforce parenting time orders, see the Friend of the Court Act, MCL 552.501 et seq., and the Support and Parenting Time Enforcement Act (SPTEA), MCL 552.601 et seq.
“A custody or parenting time order violation is any act or failure to act that interferes with a parent’s right to interact with a child as governed by the court order [MCL 552.602(e)]. This includes a custodial parent’s violation of parenting time provisions, and a noncustodial parent’s violation of custody or parenting time provisions.”37 SCAO Memorandum, SCAO Administrative Memorandum 2002-11 Guidelines for Enforcement of Custody and Parenting Time Violations, p 1.38
It is the Friend of the Court’s (FOC) responsibility to initiate proceedings to enforce an order or judgment for custody or parenting time. MCR 3.208(B). “The [FOC] has discretion to use any of the enforcement remedies available for a parenting time violation.” SCAO Administrative Memorandum 2002-11 Guidelines for Enforcement of Custody and Parenting Time Violations, supra at p 3. “Selection of an enforcement remedy should [] be influenced by the safety concerns that arise when one party has committed a crime against a child or the other party, or has violated another court order (such as a [PPO]) in exercising or asserting custody or parenting time rights.” Id.
Unless the parties opt out of FOC services, the FOC is required to “open and maintain a friend of the court case for a domestic relations matter” and must “administer and enforce the obligations of the parties to the friend of the court case as provided in [the Friend of the Court Act, MCL 552.501 et seq.]”39 MCL 552.505a(1). The parties to a domestic relations matter may file a motion with their initial pleadings to opt out of receiving FOC services, and the court must allow the parties to opt out unless, among other reasons,40 “[t]here exists in the domestic relations matter evidence of domestic violence or uneven bargaining positions and evidence that a party to the domestic relations matter has chosen not to apply for title IV-D services against the best interest of either the party or the party’s child.” MCL 552.505a(2)(d).
If the FOC opens a friend of the court case, “[t]he parties to [the] friend of the court case may file a motion for the court to order the office of the [FOC] to close their friend of the court case.” MCL 552.505a(4). The court must issue an order closing the friend of the court case unless, among other reasons,41 “[t]here exists in the friend of the court case evidence of domestic violence or uneven bargaining positions and evidence that a party to the friend of the court case has chosen to close the case against the best interest of either the party or the party’s child.” MCL 552.505a(4)(f).
In response to concerns about domestic violence in proceedings to enforce custody or parenting time orders, the court should consider the following:
•Conduct ongoing screening for domestic violence in contested custody cases.
•Where domestic violence is present, deter disputes over custody and parenting time by drafting specific orders that adequately address the abuse.
•Do not require the parties to negotiate, arbitrate, or mediate their dispute, and carefully scrutinize any agreements resulting from these dispute resolution methods.
•Inform the parties that enforcement of the court’s order is the FOC’s responsibility.
•Refrain from modifying an existing custody or parenting time order until investigation of the case is complete.
E.Impact of Domestic Violence on Change of Legal Residence
MCL 722.31(1) restricts the court from changing a child’s legal residence after issuance of a court order governing custody:
“A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section,[42] a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.”43
Note: The 100-mile limitation in MCL 722.31(1) refers to radial miles rather than road miles. See Bowers v Vandermeulen-Bowers, 278 Mich App 287, 292-295 (2008) (trial court properly permitted the use of a map and ruler to measure the distance between the parties’ two residences).
“Domestic violence,[44] regardless of whether the violence was directed against or witnessed by the child[]” is one of several factors the court must consider “[b]efore permitting a [child’s] legal residence change otherwise restricted by [MCL 722.31(1)].” MCL 722.31(4)(e).45
“If [the statutory restrictions of MCL 722.31] appl[y] to a change of a child’s legal residence and the parent seeking to change that legal residence needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination under [MCL 722.31].” MCL 722.31(6).
Note, however, “while the Child Custody Act permits a child to have a ‘legal residence with each parent,’” “[n]owhere does the Child Custody Act indicate that a child may have dual domiciles[;]” rather, “the Child Custody Act is consistent with the notion that a child may have only a single domicile at any given point in time.” Grange Ins Co of Mich v Lawrence, 494 Mich 475, 507, 515-516 (2013) (“hold[ing] that a child of divorced parents who may have more than one legal residence, nevertheless still has only one domicile at a given point in time”). “Because parents are legally bound by the terms of [a] [child] custody order,” they lose the capacity to choose the child’s domicile. Id. at 508-509. Accordingly, “[a] child’s domicile is established by operation of law and [] [a] custody order is thus determinative of the child’s domicile for all purposes.” Id. at 481. “Where a court order sets a child’s custody or domicile by operation of law, the factual circumstances or the parents’ or child’s intentions are irrelevant to the domicile determination[;]” rather, “the relevant consideration is which parent has physical custody under the terms of the order.”46 Id. at 511-512.