Our Concerns with HB 4691

MCEDSV’s Concerns with Presumptive Joint Custody Legislative

For decades, Michigan’s family courts have placed the best interests of Michigan’s children at the forefront of any custody decisions in cases where the parents are unable to agree. Presumptive joint custody would abandon the best interest factors analysis, in favor of a “one size fits all” approach.

Joint custody is not right for every family. And for families that have experienced domestic violence, it will put child and adult victims of domestic violence at even greater risk for harm.

Here are 10 reasons why the Michigan Coalition to End Domestic and Sexual Violence (MCEDSV) opposes House Bill 4691:

1. Joint custody already receives special and preferential consideration under Michigan law. The current law requires courts to inform the parties of the availability of joint custody, consider awarding joint custody if either party requests it, and state the reasons on the record if joint custody is not awarded.
2. Most custody cases are resolved by the parties coming to an agreement. Since Michigan law directs judges to enter such agreements as the final custody order (unless the court finds by clear and convincing evidence that the agreement is not in the “best interest of the child”). This presumption would most directly impact those cases where the parties cannot agree. A large number of these cases involve domestic violence.
3. Research and experience indicates that for joint custody arrangements to be successful for children, parties must be highly motivated and committed to co-parenting in different households. Cooperation, compromise, communication and safety are all necessary components to a successful joint custody arrangement. These components are not present in every situation, and certainly do not exist where one party has a history of abuse against the other. Joint custody should be an option if both parents support it and if they are capable of cooperation; it should have no presumptive superiority, and it should be disallowed if the parents’ relationship is chronically conflicted or if one parent has abused the other.
4. Joint custody places a great burden on some children. Joint custody often requires a child to move back and forth continuously. Even in the best of situations, with highly committed and cooperative parents, the child must live in two households and neighborhoods, in essence having two lives. Some children simply do not have the capacity to thrive under these circumstances.
5. Joint custody does not improve parental cooperation in high conflict cases. It has been well documented that joint custody actually increases conflict in these situations, resulting in greater trauma and harm to the child.
6. Pursuing joint custody is not always done out of a desire to spend time with the child. In domestic violence situations, abusers frequently use joint custody to prevent the victim from leaving, as many victims will stay rather than risk the child living alone with the abuser. In cases where the victim does leave, gaining joint custody allows the batterer continued legal access to control and abuse both the adult and child victims. A presumption of joint custody will only make these tactics easier and more effective.
7. Joint custody requests are also made as a means to avoid (or lessen) payment of child support. This often results in decreased resources for the children, particularly in the many joint custody cases where one parent becomes the primary caretaker and shoulders the majority of the expenses, despite the court order presuming expenses will also be shared.
8. Joint custody is more expensive for everyone, as it presupposes the maintenance of two households with sufficient room and necessities for the children. Joint custody creates particular hardships for low-income families, especially for TANF recipients. TANF requires a parent to have custody the majority of the time in order to be eligible for many benefits.
9. HB 4691 would throw out decades of established laws and procedures in the family courts that have been focused on the best interests of children.
10. HB 4691 is opposed by numerous professional organizations with expertise on family dynamics and child custody. Notably, the following groups have joined MCEDSV in publicly opposing this bill: National Association of Social Workers, Michigan Chapter; Michigan State Bar Association, Family Law Division; Michigan Judges’ Association; Michigan Poverty Law Program, Family Law Task Force; Batterer Intervention Services Coalition of Michigan; Michigan Domestic and Sexual Violence Treatment Board.

For many survivors of abuse, the family courts are a place to seek protection from their abusers and ensure accountability for the financial support of their children. The radical changes to Michigan’s custody laws that are contained in HB 4691 could have dangerous, unintended consequences.

MCEDSV has provided leadership as the statewide voice for survivors of domestic and sexual violence since 1978. We are a statewide, nonprofit organization. Our members are a network of domestic and sexual violence programs. Our mission is to develop and promote efforts aimed at the elimination of all domestic and sexual violence in Michigan.