“Fair to the parents may actually be unfair to the child”
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Birmingham, Mich. – June 27, 2017 – Terms like “50/50 split” and “you take half and I take half” are often used to reflect fair and equal division of goods, money or property. However, such terms don’t necessarily apply when it comes to parenting time for children in divorce cases, according to Jessica Woll, managing partner of Woll & Woll, P.C., a Michigan-based divorce and family law firm specializing in child-centric divorceSM matters and complex family law issues. That’s why Woll finds new Michigan legislation HB4691, which revises the manner in which a court will determine parenting time and aims for 50/50 shared time between both parents in a divorce case, so troubling.
Championed by House Judiciary Chair, Jim Runestad, HB4691 would grant joint custody and “equal parenting time” following divorce to both parents, unless the court determines by clear and convincing evidence that a parent is unfit, unwilling, or unable to care for the child. It amends several provisions of the Child Custody Act of 1970, Public Act 91, which gave courts the authority to decide parenting time disputes in ways that favored the child, rather than the parents.
Revisions to the Child Custody Act of 1970 include:
- Revising the factors that constitute what are in the best interests of the child
- Creating a presumption of joint legal custody and substantially equal parenting time – and defining those terms
- With few exceptions, requires a court to grant joint legal custody and substantially equal parenting time
- Requires a “clear and convincing” standard of proof to rebut a presumption of established custodial environment or to demonstrate why joint legal custody or substantially equal parenting time should not be granted
- It requires, instead of allows, a court to consider certain factors when determining parenting time orders
- For a child at least 16 years of age, gives predominant weight to the child’s preference
- Prohibits a parent from changing a child’s residence over 40 miles (instead of 100) from the child’s residence or school unless a court finds that the 40 miles distance negatively impacts the child’s access to parenting time and the child’s involvement in support groups and extracurricular activities.
Woll calls the proposed legislation “50/50 unfair” and is concerned it will be harmful to children of divorce if passed.
“Over the past 10+ years, I have seen a shift among judges in SE Michigan moving to declare equal parenting time schedules for children between their divorced parents – and sometimes the consequences are devastating to the children,” Woll said. “While HB4691 may sound reasonable in theory, I contend that fair does not always mean equal when it comes to parenting time for children of divorce. In reality, fair to the parents may actually be unfair to the child.”
Woll, herself a product of divorce, is known for her advocacy of children in divorce and, notably, for changing the steps the Court must take when determining whether a parent may leave the state with a minor child. In the case of Rittershaus v. Rittershaus, Woll established that a Court must conduct a best-interest analysis when a change of domicile is found to change the established custodial environment of a minor child. (273 Mich. App. 462, 470-471, 730 N.W.2d 262 (2007).
Woll said the goal in divorce cases is to remain child-centric throughout the custody and parenting time determination process and HB4691 may not help accomplish this goal.
“There are a host of potentially damaging issues that can occur with a 50/50 parenting time schedule, including the challenges for children of creating a home in two different dwellings, the need for a child to spend more time with a particular parent based on age and developmental stages, or the simple matter of logistics for working parents,” Woll said. “If the goal is raising emotionally healthy children, which it should be, the chief consideration is whether spending equal time in each parent’s household favors the parents rather than serving the best interests of the child.”
When Woll began practicing divorce and family law in 1994, the tide had turned from giving mothers full custody and visitation rights to fathers.
“The shift away from considering the mother as the custodial parent was a logical extension of the overarching changes in women’s and men’s roles in society at that time, where more women entered the workforce and fathers began playing a larger role in hands-on co-parenting and child rearing,” Woll said. “But custody decisions should not be based on a parent’s gender; I believe the 50/50 custody trend and HB4691 are based, at least in part, on gender rather than what’s in the best interest of the child.”
Read the Michigan HB4691 bill here. In addition to Woll, the Family Law Section of the Michigan Bar Association also opposes the bill. To raise awareness of the issue on social media, use #5050unfair #5050unequal #mileg and #HB4691. After House Committee approval on June 20, the bill was sent to the full House for consideration; action is not expected until the fall.
About Woll & Woll, P.C.
Committed to excellence in child-centric divorceSM matters and complex family law issues since 1994, Woll & Woll specializes in divorce and family law, including legal separation, post-judgment of divorce matters, removal of domicile actions, stepparent adoption, custody, child support, paternity and other family issues. Learn more at http://www.wollandwollpc.com.