By: Dennis M. Germain, Michigan Family Law Attorney & Counselor at Law
This article is Part 1 of a 3 Part Series about legal rights associated with parenting time (a.k.a. parental visitation, physical custody, etc.). While both “custody” and “parenting time” fall under the Michigan Child Custody Act (MCL 722.21, et seq), it is important for parents to understand the distinction between the two phrases. This series of articles focuses on certain aspects of the often forgotten “Parenting Time” section of the Child Custody Act, MCL 722.27a. Part 1 focuses on a parent’s right to a specific parenting time schedule. Part 2 focuses on a parent’s decision-making rights during his/her parenting time. Part 3 focuses on modifications of custody versus parenting time.
YOUR RIGHT TO PARENTING TIME IN “SPECIFIC TERMS”
In particular, the instant article focuses on a short but very important little sentence listed at MCL 722.27a(7), which states that:
Parenting time shall be granted in specific terms if requested by either party at any time.
Well what does this statement mean? It means exactly what it says! If the parenting time schedule listed in your Judgment of Support, Judgment of Custody, Custody and Parenting Time Order, Judgment of Paternity and Custody, or other binding order regarding parenting time is vague or unclear on your parenting time; you have an unequivocal right to ask the Court (or Friend of the Court Referee), at any time, for a written court order stating when, where, and how your parenting time will occur. The phrase, “any time” is construed very strictly, meaning, even if you ask the Court orally, at a hearing, without filing a motion, the Court MUST give you a specified parenting time schedule. FN1.
EXAMPLE WHERE THE RIGHT IS APPLICABLE
Common statements I hear indicating it is time to request parenting time in specific terms include:
“My order of custody and parenting time does not clarify what days and times I get parenting time.”
“The mother has complete discretion of when I get to see my children.”
“The custodial parent exercises arbitrary veto power of my visitation with our child.”
“The other parent is letting my child decide when I get parenting time.”
“I do not have a specific schedule for parenting time.”
In my experience, the most common instance where a specific parenting time schedule is needed is when the order or judgment governing custody and parenting time states, for example:
Plaintiff-Mother is awarded primary physical custody of the minor child. Defendant-Father is awarded liberal and reasonable parenting time of the minor child.
Such a vague statement where a parent is merely granted “reasonable parenting time,” can end up in a parent’s order of custody and parenting time (often a “Judgment of Support”) where the Department of Human Services refers a prosecutor to institute a case to ensure the non-custodial parent is paying child support. However, such a vague phrase can also appear in a Judgment of Divorce or Custody, where the non-custodial parent was not represented by an attorney, or worse, where the non-custodial parent was represented by an imprudent attorney. The terrible effect of merely granting a parent “reasonable parenting time,” is that the non-custodial parent has virtually no tangible way to fight back against a custodial parent’s unreasonable denial of parenting time.
Other instances where the necessity to seek parenting time in specific terms may arise when the order governing custody and parenting time identifies dates but not times, is not very specific on pickup times, or is not very specific on transportation responsibilities (in terms of parenting time exchanges). In all such cases, a parent may be able to utilize MCL 722.27a for clarification.
IDENTIFYING THE SPECIFIC TERMS
It should be noted that, while the law does require a court to award you a specific parenting time schedule, the law does not guarantee you are going to like that schedule. All the law requires a court to do is provide a parent with a parenting time schedule “in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.” FN2.
However, it is my experience, that, where a custody and parenting time order or judgment states a parent is granted “reasonable parenting time,” a court will typically award that parent the local standard parenting time schedule. An example of such a schedule would be the “Macomb County 16th Judicial Circuit Reasonable Parenting Time Schedule,” which can be found online in the Macomb County Friend of the Court Handbook. This schedule gives the non-custodial parent every other weekend overnight parenting time, one evening a week of non-overnight parenting time, alternating / staggered holiday and holiday vacation overnight parenting time, and three weeks of summer vacation overnight parenting time.
If the parent seeking a specified parenting time schedule is actually seeking to modify the whole custody arrangement, than a whole different analysis is necessary. Part 3 of this 3 part series, which discusses the distinctions between modifications of “custody” versus “parenting time,” further touches upon this area of law.
FN1 – In Pickering v Pickering, 286 Mich App 1, 6; 706 NW2d 835 (2005), the Michigan Court of Appeals found it to be a clear legal error, where a trial court refused to grant a father’s oral request for specific parenting time. Also see Geindich v Whiteman, unpublished per curiam of the Court of Appeals, issued June 29, 2010 Docket No 293139, where the Michigan Court of Appeals stated, “Once defendant filed his motion for reconsideration requesting a more specific parenting time schedule, the trial court was required to issue an order granting defendant parenting time in more specific terms… The matter should not simply be left to the discretion of defendant and the children.”
FN2 – MCL 722.27a(1); Pickering at 6 (2005).
Please note that this article is intended to be academic in nature. Its purpose is to serve as a memorialization of research as well as invoke community discussion. This article shall not constitute legal advice. It does not create an attorney-client relationship. Legal advice should be given on a case-by-case basis, as its accuracy is relative to the timing and particular facts of the given matter. It is important to always consult an attorney regarding legal matters. ******************************************************************************
I am Dennis M. Germain, a family law attorney who promotes fair resolutions to domestic relations matters. I primarily practice in Macomb County, Wayne County, and Oakland County, Michigan. My office is in Shelby Township, Michigan. My office and contact information is listed as follows:
Best Interest Law
48639 Hayes Road, Suite A
Shelby Township, MI 48315
Ph: (586) 219-6454
Fax: (586) 439-0404