November 6, 2013

Visitation in Michigan (Parenting Time)

Parenting time and visitation in Michigan explained

After custody of the childrenone of the most contentious issues in a Michigan divorce is parenting time which is commonly referred to as visitation in Michigan.  Parenting time and visitation in Michigan divorce law and Michigan custody law is statutory.  The legistlature requires that a child shall have the right to visitation in Michigan 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.  A parenting time bracket is an effective tool to apportion parenting time.

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Parenting time and Visitation in Michigan – The basics

Parenting time and visitation in Michigan are the same thing. Parenting time and visitation in Michigan is simply, the time each parent spends with the child. As a general proposition, parenting time or visitation in Michigan is awarded to the non-custodial parent, which is typically the parent who does not have the child living with him or her most of the time. The custodial parent is presumed to have visitation in Michigan (or parenting time) whenever the non-custodial parent does not.

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Parenting time and Visitation in Michigan – The details

On of the biggest challenges in a divorce is the determination of how time with the child (or children, as the case may be) will be split with between the parents.  There is no requirement for a specific schedule for parenting time or visitation in Michigan, rather parenting time and visitation schedules vary with the needs of the child and the best interest of the parties.   There are things to remember when creating a co-parenting plan.  Traditionally, the non custodial parent was awarded every other weekend, one midweek, 1/2 of the holidays and school breaks as his/her visitation in Michigan.  More contemporary parenting time and visistation schedules include equal parenting time or 4-3 schedule with one parent spending 4 days with the child and then alternating weekends.  Equal parenting time may be 7 days on and 7 days off or a 2-2-3 schedule as set forth below.  This parenting time and visitation bracket link provides sample visitation schedules and a blank visitation bracket for your use.

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It is not uncommon for a divorce or family law parenting time or visitation order to provide that a party is awarded “liberal or reasonable” parenting time without a specific schedule.

Michigan Compiled Laws section 722.27a (5)  provides that:   Visitation shall be granted in specific terms if requested by either party. Simply put, you always have a right to ask for a specific parenting time or visitation schedule.  This is provided in the parenting time statute MCL 722.27a. Michigan divorce and family law also provides that parenting time and visitation can have “reasonable terms”.

Michigan Compiled Laws section 722.27a(6), defines reasonable terms as including:

•Responsibility and cost to transport the child;

•Supervised parenting time;

•Specific times;

•Bond to insure compliance; and

•Reasonable notice if parenting time cancelled.

Parenting time and Visitation in Michigan should be customized to your specific needs, works schedule and situation.  We can help.

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Modification of a parenting time or visitation in Michigan

In order to modify an existing parenting time or visitation order you must first meet a threshold requirement to proceed of “proper cause” or “change of circumstances”.  The threshold definitiation varies if there is an established custodial environment.

The statutory basis to modify parenting time or visitation in Michigan is the same as custody, MCL 722.27(c) as the parenting time statute MCL 722.27a does not address modification.  However, case law provides an important distinction between parenting time modifications that rise to a change in the established custodial environment and parenting time or visitation in Michigan that does not change the established custodial environment.

The proper cause or change of circumstances threshold requires a “change of circumstances” from the last parenting time order sufficient to have to revisit the issue. This threshold is similar to the requirement to change custody, but less stringent.  Simply put, a change may not be sufficient to revisit custody but may be sufficient to revisit parenting time or visitiation in Michigan.  For example, a child who is changing starting a new school is probably not a material change in circumstance sufficient to revisit custody, but would likely be sufficient to modify parenting time. The process by which you request a modification of parenting time or visitation in Michigan is by filing a motion and arguing that circumstances have changed.

Modification case law:

Vodvarka v Grassmeyer259 Mich App. 499 (2003):  [I]n order to establish a ‘change in circumstances’ a parent must prove that since the last custody order, the conditions surrounding custody of the child, which could have a significant effect on the child’s well being, have materially changed.

Rains v. Rains, 301 Mich App 313 (2013):  Modifications of parenting time are not necessarily changes in custody.  Changes in parenting time are distinct from changes in custody, and only if a change in parenting time would amount to a change of the established custodial environment should the requirements to modify custody apply.

Shade v Wright, 291 Mich App 17 (2010), normal life changes (e.g. child now in high school and extra-curricular schedule was changing were a sufficient change of circumstances to modify parenting time even if insufficient to warrant modification under the definitions of Vodvarka.  When modification of a parenting time order does not alter the child’s established custodial environment, the “change in circumstances” requirement is less stringent because the concern of “providing a stable environment for children that is free of unwarranted custody changes” is not implicated. Shade, 291 Mich.App at 28–29 (citation omitted).

Kaeb v. Kaeb Docket No. 319574, decided March 12, 2015, a party requesting a change to an existing condition on the exercise of parenting time must demonstrate proper cause or a change in circumstances that would justify a trial court’s determination that the condition in its current form no longer serves the child’s best interests.   “Proper cause” should be construed according to its ordinary understanding when applied to a request to change a condition on parenting time; that is, a party establishes proper cause to revisit the condition if he or she demonstrates that there is an appropriate ground for taking legal action.  The lesser, more flexible, understanding of “proper cause” or “change in circumstances” as set forth in Shade v. Shade should apply to a request to modify or amend a condition on parenting time.

 

 

 

 

The Law – cases and statutes on visitation in Michigan

Michigan Compiled Laws section 722.27(a) is the statutory law that governs visitation in Michigan and parenting time.

The statute begins by requiring that parenting time be granted in accordance with the best interest of the child. The “best interest factors” are the same factors that a court uses in deciding custody as set forth in Michigan compiled laws section 722.23.

A detailed explanation of the best interest factors can be found here. The Michigan divorce and family law parenting statute provides as follows: Michigan compiled laws section 722.27(a):

(1) Parenting time shall be granted In accordance with the best interest of the child.

(2) If the parties agree on a parenting time schedule, the court shall order unless the court determines on the record by clear and convincing evidence.

(3) Child shall have the right to visitation 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.

(4) The court may consider the following factors when determining the frequency, duration, and type of visitation to be granted:

(a)  Special circumstances or needs of the child;

(b)  Whether the child is nursing;

(c)  Reasonable likelihood of abuse or neglect of child during visitation;

(d)  Reasonable likelihood of abuse or neglect of parent during visitation;

(e)  The inconvenience to, and burdensome impact or effect on, the child travelling to and from visitation;

(f)  Whether the visiting parent can reasonably be expected to exercise visitation in accordance with the court order;

(g)  Whether the visiting parent has frequently failed to exercise reasonable visitation;

(h)  The threatened or actual detention of a child with the intent to conceal the child from the other parent;

(i)  Any other relevant factors factors.

Michigan compiled laws section 722.27a (5) further provides that: Visitation shall be granted in specific terms if requested by either party.

Case Law. Parenting time modification:

Vodvarka v Grassmeyer259 Mich App. 499 (2003):  [I]n order to establish a ‘change in circumstances’ a parent must prove that since the last custody order, the conditions surrounding custody of the child, which could have a significant effect on the child’s well being, have materially changed.

Rains v. Rains, 301 Mich App 313 (2013):  Modifications of parenting time are not necessarily changes in custody.  Changes in parenting time are distinct from changes in custody, and only if a change in parenting time would amount to a change of the established custodial environment should the requirements to modify custody apply.

Shade v Wright, 291 Mich App 17 (2010), normal life changes (e.g. child now in high school and extra-curricular schedule was changing were a sufficient change of circumstances to modify parenting time even if insufficient to warrant modification under the definitions of Vodvarka.  When modification of a parenting time order does not alter the child’s established custodial environment, the “change in circumstances” requirement is less stringent because the concern of “providing a stable environment for children that is free of unwarranted custody changes” is not implicated. Shade, 291 Mich.App at 28–29 (citation omitted).

Kaeb v. Kaeb Docket No. 319574, decided March 12, 2015, a party requesting a change to an existing condition on the exercise of parenting time must demonstrate proper cause or a change in circumstances that would justify a trial court’s determination that the condition in its current form no longer serves the child’s best interests.   “Proper cause” should be construed according to its ordinary understanding when applied to a request to change a condition on parenting time; that is, a party establishes proper cause to revisit the condition if he or she demonstrates that there is an appropriate ground for taking legal action.  The lesser, more flexible, understanding of “proper cause” or “change in circumstances” as set forth in Shade v. Shade should apply to a request to modify or amend a condition on parenting time.

Grandparent time statute.

MCL 722.27b.  In simple terms, grandparent time is awarded if denying the time creates a substantial risk of harm to the child’s mental, physical or emotional health.  (See.  MCL 722.27b(4)(b).)

Grandparent time case law.

Troxel v. Granville, 530 US 57 (2000), defined a fit parent as a parent who “adequately cares for his or her children.” which led to the determination that Michigan’s old grandparent time statute was unconstitutional.  (See:  DeRose v. DeRose, 469 Mich. 320 (2003)).

In Re: Sanders, 495 Mich. 394 (2014), parents have a constitutionally protected right to make decisions about the care, custody, and management of their children.

Geering v. King et. al., Mich. App. No. 335794, the trial court made a determination that the biological parents were unfit and that grandparent time was in the children’s best interest notwithstanding the biological parent’s objections.  The Michigan Court of Appeals reversed.

Brinkley v. Brinkley, 277 Mich. App 23 (2007)   “. . . if two fit parents . . . both oppose visitation, their joint opposition effectively creates an irrebuttable presumption that denial of grandparent time will not create a substantial risk of harm.

Resources and Answers to your questions

THE BASICS THE DETAILS THE LAW ARTICLES VIDEOS

MODIFICATION EXPLORE ALL DEPARTMENTS

Articles – on visitation in Michigan

Creating a Co-Parenting Plan

Michigan parenting time and the child’s birthday

Holiday Parenting Time in Michigan

Reasonable parenting time in Michigan

Moving with children video (Changing domicile and Michigan divorce)

Christmas parenting time (visitation) after divorce?

Reasonable parenting time in Michigan

 

 

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By:  Daniel Findling
(c) 2016 The Divorce Guy, Michigan Divorce Attorneys and Specialists www.thedivorceguy.com

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