Every year brings new and updated technology, yet the best technology cannot calculate or predict the outcomes of individual personalities, emotions, and human interactions.
Hon. Kirsten Frank Kelly described the application of a formulaic approach to spousal support as “limited [and] arbitrary” and without any support in the law because it does not “consider the unique circumstances of the parties’ respective positions and fails to reach an outcome that balances the parties’ needs and incomes.”1 Kelly opined that by using a formula, the trial court failed to consider the relevant factors in an award of spousal support.2 Similarly, a formula, calculation, or standard policy that is to be applied by default or because parents simply do not agree with one another on what is best for their children in the midst of a custody dispute does not adequately account for many of the other relevant and important factors to be analyzed by the court, whether applied to spousal support or parenting time.
MCL 722.27a(1) states that “parenting time shall be granted in accordance with the best interests of the child. It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.” The statute goes on to say that parenting time shall 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” following a court’s consideration of the factors enumerated at MCL 722.27a(7), specifically:
(a) the existence of any special circumstances or needs of the child.
(b) whether the child is a nursing child less than six months of age or less than 1 year of age if the child receives substantial nutrition through nursing.
(c) the reasonable likelihood of abuse or neglect of the child during parenting time.
(d) the reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
(e) the inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
(f) whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g) whether a parent has frequently failed to exercise reasonable parenting time.
(h) 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.
(i) any other relevant factors.
Translating these factors into an appropriate parenting time schedule can be a challenge. I have been searching for the perfect universal, multipurpose, functional, standard parenting time order — the “super order” — that contains all the provisions for parenting time. Unfortunately, such an order seemingly does not exist. The circumstances of the individual parties, specific characteristics, and family dynamics are subjective factors that differ in every case. Consider the diversity of Michigan’s economy, for example, with industries such as agriculture, automotive manufacturing, and tourism;3 it is simply not feasible that the same super order could be applied in Marquette, Lake, Wayne, and Kent counties because the needs of the residents in each jurisdiction are different.4 A farmer during harvest time needs a far different and more flexible schedule than two parents who work weekdays from 9 a.m. to 5 p.m. and live within blocks of one another or an autoworker on the midnight shift co-parenting with a waitress who works afternoons.
While this author could not find a single source for the information that follows, my research uncovered that of the 57 circuit courts in the state, 13 do not have published documents labeled “standard parenting time schedule/policy” or “holiday parenting time schedule,”5 and six have publications with guidelines and options to assist with coparenting, but no default policies.6 Only three circuit courts acknowledged that they may serve families who do not celebrate Christmas (with a footnote to contact the court to discuss alternate parenting plans)7 and just one court acknowledged that it serves families with same-sex parents.8 While relevant in every single county, not one county provided a proposed parenting time schedule for parents working afternoon or midnight shifts.
Guidance for parents and practitioners to create parenting time schedules that work for each specific family is available, with consideration given to child development, age, and safety. SCAO publishes the Michigan Parenting Time Guideline.9 Originally developed in 2000 as an informational tool about parenting time best practices, the publication was created by an advisory committee of judges, Friend of the Court referees, custody and parenting time specialists, mediators, attorneys, and psychologists. The guideline recognizes that “because each family is unique, there is not one standard schedule that works best for all families” and offers a variety of parenting time plan options that take into consideration a child’s age and the family construct when designing proposed schedules.10 Most recently updated in March 2022, the guideline is an excellent resource for both parents and practitioners.
In many standard parenting time policies published by counties throughout the state, circuit courts award the “non-custodial parent” alternating weekend parenting time from Friday at 6 p.m. to Sunday at 6 p.m. with one dinner per week from 5-8 p.m.; depending on the county, it may be earlier or later.11 Again, my research uncovered that very few counties provided for the non-custodial parent to pick up or drop off children at school, which more easily allows for the non-custodial parent to be involved in the child’s school day or to talk to a teacher. For example, the summer parenting time schedule for the non-custodial parent under many of these policies ranged from one week in June, July, and August12 to 50% or even 70% of the summer.13 Some counties structured their parenting time plans to alternate weekly,14 while others order the custodial parent to exercise weekend parenting time while the non-custodial parent was able to spend the most time with the child during the summer.15
Moreover, none of the policies defined the term “non-custodial parent” to provide readers with insight into the difference between custodial and non-custodial. The term “non-custodial” appears in pre-1997 opinions relating to a parent being denied the right to “visit” his children in Hutchins v. Hutchins,16 Henshaw v. Henshaw,17 and Brown v. Turnbloom.18 In fact, parents continued to “visit” their children until 1997, when the Michigan Court of Appeals first used “parenting time” in its published opinion in Van v. Zahorik.19
The amount of guidance provided to parents separated by geography also varies by county. Approximately half of the standard parenting time policies considered different arrangements for infants and toddlers versus school-aged children, typically defined as starting in first grade. This author found that several counties provided alternate policies for long-distance parents who lived 50, 100, or 125 miles apart20 and between two and five hours away.21 Several counties provided tips on how to prepare a child for parenting time while others provided lists of acceptable and unacceptable reasons to cancel parenting time.
My research also uncovered the fact that some counties, in an attempt to provide resolutions to frequently disputed topics, allow parents to smoothly transition from Mr. and Mrs. to mom and dad living in two separate homes and provide some very specific policies to address issues such as childcare; transportation to and from parenting time exchanges; use of car seats; licensed driver requirements; medications; the child’s attendance at appointments and activities; communication between parents; prohibition of using the child as a messenger or exchanging mail at parenting time; the exchange of clothing; banning significant others around the children; and smoking and the use of alcohol.22 Other counties limited the policies to the schedule for weekend, weekday, holiday, and summer parenting time.
The standard parenting time policies for some counties have been updated as recently as June 2022. Policies in other counties remain outdated. Many counties provide proposed orders on their websites, but have not updated orders available to the public with new language required by MCL 722.27a(10) — specifically, that orders “shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.” If the intention of posting these policies is to inform and guide, many counties would be advised to at least provide accurate information.
Despite the best efforts of those within the family law community committed to tailoring parenting time plans to each family’s specific needs, reasonable parenting time policies — which provide no context of what “reasonable” means — have been in place throughout many counties in the state for the past 20 years. To this day, they often remain the default language used in some counties and are treated as the rule instead of what they are: an arbitrary approach that fails to examine the unique circumstances of the parties’ family dynamics and apply the statutory factors to each unique situation.
All parents and children deserve what is in their best interest and not the application of a generic schedule that has been the default for two decades. Parents no longer “visit” their children on weekends; they parent them seven days a week.
As family court attorneys, we must educate judges and other court professionals on the proper application of existing laws and the variety of available parenting time plan options. Understanding and using these resources will help ensure that the child’s best interests are at the center of every decision made in family courts throughout the state.
When was the last time you reviewed the Michigan Parenting Time Guideline and parenting time options, read your county’s Friend of the Court website, or offered constructive suggestions to your Friend of the Court regarding its website content? Michigan family law practitioners can do better. Future generations depend on it.