On February 5, 2015, a group of 21 lawmakers in Lansing introduced House Bill 4141 to the State Legislature.  If passed, this bill will modify Michigan’s existing Child Custody Act of 1970 by making it effectively automatic that parents in a divorce or child custody dispute will share joint custody and have substantially equal parenting time with their children.  At first blush, this seems to many like a noble purpose and is sensible.

But very little in this bill is actually designed around the needs of the children and what happens when there is a case where equal time may not be in their best interests.  In fact, if this bill passas, courts would only be allowed to deviate from this mandated joint custody/equal parenting time law if it can be demonstrated that one parent is unfit, unwilling or unable to care for the children.  The standard for whether a parent is unfit is the same standard used in terminating a parent’s parental rights.  In other words, in order to obtain a custody order that provides for a schedule other than equal parenting time, a parent’s conduct must be so terrible so as to rise to the level of having his/her rights as a parent stripped away.

The result of this proposed law would be that there would be absolutely no middle ground in custody cases.  Either the parties would share joint/equal custody or one parent would be determined to be unfit.  Of course, the parents would be free to enter into an alternate parenting schedule if they agree that equal parenting time won’t work for their family.  But absent some compelling reason to agree to some alternate arrangement, such as one parent working long or unpredictable or irregular hours or with job requiring frequent travel, it is difficult to imagine a parent sacrificing equal parenting time when the law would entitle him or her to it.

Even worse, the law could lead to parents who would be satisfied with less than half the time with their children to use that time as a bargaining chip and to gain leverage in other issues in the divorce, such as alimony or property division.  And why should they?  If you are assured of equal time by law, why give it up unless you receive something in return from your spouse?  This would make the children pawns more so than ever before.

Those who favor this bill’s passage into law would argue that a law mandating joint custody and equal parenting time is the best way to ensure both parents play an active role in the children’s lives and upbringing.  In particular, fathers and fathers groups, who feel that judges tend to favor mothers in child custody disputes, might be particularly supportive of this bill and understandably so.

But the truth about this bill is that it appears to be written in way that will accomplish some sense of fairness between the parents, rather than calling for a careful examination of what is in the children’s best interests.  Currently, judges are required to make such an examination of the children’s best interests, which generally involves a review of 12 or more factors and weighing each one in order to reach a conclusion on custody and parenting time.  This can be a time consuming, expensive and emotional process.

While House Bill 4141 certainly makes the process quicker and probably cheaper for parents.  It would take nearly all of the discretion away from the court unless a parent is proved to be unfit, which would likely be limited to an extremely small number of parents (at least compared with the large number of couples going through a divorce or custody dispute).  Some will argue that taking this discretion away from the courts is a good thing.  But I would argue that a court’s discretion is invaluable in custody decisions and allows the court, where called upon do so, make an informed and thoughtful decision after hearing all of the testimony and reviewing of the evidence presented, including in some cases the input of the children, as well as mental health professionals.

Simply put, there are a multitude of reasons why a family court judge may find that one parent is better suited or equipped to have more parenting time with the children than the other parent.  The determination of what sort of custody arrangement the children will have with their parents should be one that is based upon their individual needs and best interests, rather than what is fair to the parents or a misguided notion that equal time is always best for the children.

To be sure, no system is perfect.  But this bill is so far from perfect that it is worth every parent’s attention.  Judges almost never find an outcome that pleases everyone, which is the very reason why focusing solely on the children’s needs and best interests is the better model for deciding child custody disputes.

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