Visitation / Parenting Time: An Overview

By

Michael A. Robbins

A. Statutory Authority and Relevant Case Law.

1. The circuit court may, in the best interests of the child, provide for reasonable visitation by the parties involved, the maternal or paternal grand­parents, or by others, by general or specific terms and conditions. MCLA 722.27(1)(b).

(a) Disputes over visitation rights are governed by the Child Custody Act which requires the trial court to take the best interests of the child into account. Raleigh v Watkins , 97 MichApp 258 (1 985).

(b) Where the trial court fails to do so, it is Stevens v 86 Mich App 258

(1978).

(c) Trial court in visitation rights case need not evaluate each of the statutory factors in child custody Act , but may focus solely on the contested issues. Hoffman v Hoffman , 119 Mich App 220 (1979).

(d) When determining visitation rights, best interests of the child involved are of para— mount concerns. Cooper v Cooper , 93 Mich App 220 (1979).

2. Upon petition consider the reasonable visitation of maternal or paternal grandparents and, if denied, make a record of such denial. MCLA

3. If the court finds that it is in the best interests of the child to enter a grandchild visitation order, the court shall enter an order providing for reasonable visitation of the child by the grand­parents by general or specific terms and condition . MCLA 722.27(b)(3). A grandparent may not file for visitation more than once every two years, absent the showing of good cause. MCLA 722.27(b)(4).

(a) Attard v Adamczvk , 141 Mich App 246 (1985)

(b) OleDa V OleDa , 151 Mich App 690 (1986)

(c) Jewett V Jewett , — Mich App ____ (NOV 1988)

B. Statutory Authority for Modification.

1. The court may modify or amend its previous visitation orders for proper cause shown or because of change of circumstance until the child reaches the age of eighteen years of age. MCLA

722.27(1 )(c).

(a) See ~J~.ish, supra

(b) See ~ supra

(c) See I~ff.m~n, supra
(d) See cQQ.~I, supra

(e) The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interests of the child. MCLA 722.27(1)(c); Henshaw v Henshaw , 83 Mich App 68 (1979).

(f) It is error to modify visitation without holding an evidentiary hearing to determine the necessity of such modification. Bivens v Bivens , 146 Mich App 223 (1985).

2. The court may enter an order modifying or terminating a grandchild visitation order whenever such a modification or termination is in the best interests of the child. MCLA 72227(b)(7).

C. Enforcement of Visitation Rights.

1. The 1982 Support and Visitation Act, MCLA 522.601, allows for voluntary domestic relations mediation for resolving visitation disputes. Additionally, it also provides for three other methods of enforcement:

(a) MCLA 552.642, as amended by 1985 Public Act 210, effective March 1, 1986, requires that no later than 180 days after enactment of the amendment, each circuit court shall develop a make—up visitation policy. Therefore, effective September, 1986, all circuit courts should have a make—up visitation policy in effect.

(b) The Friend of the Court Office may also commence a civil contempt proceeding to resolve a visitation dispute. The wrongful denial of visitation may result in the court's finding the custodial parent in contempt and ordering modification of the visitation terms, make—up visitation or commitment of the custodial parent to jail, with or without work privileges. MCLA 552.644.

(c) The Friend of the Court may also petition the court to modify existing visitation provisions to insure visitation unless it would be contrary to the best interests of the minor

4 child. A written report and recommendation must accompany the petition. MCLA 552.641(C).

2. If a parent retains a child for more than 24 hours, with the intent to detain or conceal the child from the other parent who has custody or visitation rights pursuant to a lawful court order, shall be guilty of a felony punishable by imprisonment for not more than one year and a day, or a fine of not more than $2,000, or both. MCLA 750.350(A).

D. Denial of Visitation Effecting Duty to Support.

1. The general rule in Michigan is that payments for the support of children who are in the custody of a party who refuses to accord the other party visitation rights may be suspended until the party with custody conforms with the visitation order, if the suspension would not adversely affect the welfare of the children. McLaughlin v McLaughlin , 372 Mich 275 (1964).

2. Support payments may not be used as a weapon to force a child's visitation. ~ v Henshaw , 83 Mich App 68 (1978).

3. Fact that child did not want to see father and mother would not warrant a discontinuation of child support. Richardson v Richards On , 122 Mich App 531 (1983).

E. Visitation Act — Public Act 377 (Signed 12/20/88). See Exhibit "A'. (Effective 3/31/89)

II. VISITATION GUIDELINES (Adapted from Friend of the Court Handbook)

A. For both parents.

1. Your child should not be a source of information. This can be upsetting for everyone and can create problems.

2. A child can learn to "play' parents against each other. Talking to each other about your child's emotional needs can stop unfavorable behavior.

3. Follow the schedule set for parenting time. If you need to change this, make prior arrangements. Show respect for each other and your child.

4. Avoid fighting in front of your child. If this happens often, wait outside the house or in the car.

5. If you are the non—custodial parent and are having problems with visitation, you must still pay support. On the other hand, if you are the custodial parent, and not receiving child support, you are still required to allow visitation. Support and visitation are not dependent upon each other. Visitation should continue whether support is paid or not. Support must be paid whether or not visitation is occurring. If you are having problems in either area, contact the Friend of the Court Office or your Family Law attorney before taking matters into your own hands.

6. Both parents should work for agreement in decisions regarding the discipline so that one parent is not working against the other's efforts.

7. Always work for the emotional well—being, health, happiness and safety of your child.

B. For the Non—Custodial Parent.

1. E3e on time. If you are more than one—half hour late, the custodial parent does not have to wait.

2. Spend parenting time with your child. Too often children are left with relatives, new girlfriends, boyfriends, etc. Your child needs time with you. Regular visitation is very important.

3. Parenting time does not have to be a constant round of movies, ball games,. circus, restaurants, etc.; do some quiet or casual things with your child.

4. Return all items sent.

5. If your child is taking medication, make sure it is taken at the proper times.

6. If your child becomes ill, seek medical attention and contact the other parent.

7. During visitation, do not tell your child you will have custody someday. If you feel a change is in order, take the proper legal steps.

8. If you have been drinking or using drugs, visitation may not be allowed.

9. If you are not allowed visitation and feel the reasons are unfair:

— Keep track of the dates and reasons given.

— Write a letter to the Friend of the Court.

10. If you don't have a drivers S license, ask a relative or friend to do the driving.

11. Make every effort not to get behind in your child support. If you are having problems with visitation, you must still pay support.

C. For the Custodial Parent.

1. Supply proper clothes.

2. Tell the other parent if your child is ill, and if your child is on medication, be sure to send the medication and instructions.

3. Let your child enjoy and have fun being with the other parent.

4. Cutting off visitation or threatening your child from seeing the other parent is unfair to every­one.

5. If the visiting parent has been drinking or using drugs, you do not have to let the child go with them. If you do not allow visitation:

- Keep track of those times.

- Write to the Friend of the~ Court.

6. Let your child enjoy gifts from the other parent.

7. Remember, another person may need to drive your child for the purposes of visitation..

8. If you are not receiving child support, you must still let your. child spend time with the other parent.

D. The Following Excuses by the Custodial Parent are not Valid Reasons for Denying Visitation:

1. The child is sick (unless the non—custodial parent is provided with the specific nature of the illness and an opportunity to see child another time).

2. The child has to go somewhere else.

3. The child is not home.

4. The non—custodial parent is behind in his support obligation.

5. The child wants to stay home.

6. The custodial parent does not want the child to go on visitation.

7. The weather was bad.

8. The child has no clothes to wear

By: Michael A. Robbins, Esq.