There are three basic forms of visitation, now more commonly known as the “parenting plan.” The first form is “shared” parenting. This does not have to be 50/50 or equal to be “shared.” If one of the parents sees the children 40% of the time, this is still considered “shared.” The second form of a parenting plan is one where the mother has primary possession of the child(ren), and the father has the right to visit. The last form of a parenting plan is one where the father has primary possession of the child(ren), and the mother has the right to visit.
“Shared” Parenting Plan
In cases where the parenting plan attempts to divide the parenting time evenly, often the plan will provide for “week-on/week-off.” That means that one parent has the child(ren) from, e.g., Sunday until the next Sunday, and the other parent has the following week. This scheme alternates throughout the year with exceptions often made for the holidays, which usually trump the regular parenting plan.
Some families with older children opt to have the schedule rotate every two weeks or even every four weeks. This provides for few exchanges but requires that the children can tolerate more than a few days away from the other parent. When the children are away from one of the parents for more than a week at a time, it is common to provide for a visit with the other parent mid-way in the parenting plan. For example:
If the plan rotates every week, then many families provide for a mid-week visit with the other parent on, e.g., Wednesday from after school to 7:30 p.m. or from after school on Wednesday until the child is returned to school on Thursday morning. The times and dates of the exchanges can be negotiated between the parents. For example, in the plan above that includes rotations of two weeks at a time, the weekend visit with the other parent could begin from after school on Friday and end on Sunday at 6 p.m. or end with a return to school on Monday.
With very young children, it is more common to see shorter periods of time away from either parent. Some families actually rotate the children every other day. Some people rotate a schedule every other month that provides for Monday, Tuesday, Wednesday to Parent A in Month 1 and then Thursday, Friday, Saturday to Parent A in Month 2. The parties can then alternate the Sundays on an every-other-week basis. This provides weekend parenting time to the parents in a roughly equal amount. There is another plan called the 5-2-2 plan where in Week #1, mom has the children on Monday and Tuesday; dad has the children on Wednesday and Thursday; and the mom has the weekend from Friday through Sunday. Then the parties switch with dad having Monday and Tuesday of the next week along with the weekend.
Primary Possession Plan
When one parent has primary possession, the other parent usually has alternating weekends. Those weekend times used to be something like Friday at 6 p.m. to Sunday at 6 p.m., but that did not provide much parenting time. Eventually, many families began to schedule the every-other-weekend visits from after school on Friday to 6 p.m. on Sunday or even extending to a return to school on Mondays. This scheme has the advantage of limiting the amount of contact the parents have with each other since the child is picked up from school and dropped off at school. It has the added advantage of allowing the visiting parent to interact with the school to some extent.
Another feature of the alternating weekend schedule that has gained in popularity is the addition of the mid-week visit as described above. This mid-week visit can include an overnight or can be, instead, an opportunity for dinner with a return to the custodial parent.
As an aside, some families have a schedule that changes with the summer. During the school year, one parent may have the bulk of the time (perhaps because he/she is more involved with the children’s school activities and homework or because of the distance between the parties), and the other parent may have the bulk of the time in the summer. Also, most parenting plans include not only holiday visits but also some substantial time for a vacation in the summer. The summer vacation time can range from 1-2 weeks to a larger block of time. With young children, there is usually a provision in the order that prevents a parent from taking “consecutive weeks” of time to prevent too much time away from either parent. Thus, with children under 5-7 years of age, one
might see a provision for two one-week periods of vacation time in the summer, separated by at least 30 days—and with older children, perhaps two consecutive weeks of time or two two-week blocks, separated by at least 30 days between the blocks. During these extended times, there may be a provision for a short visit with the other parent if the visiting parent is in town during that time.
Under Michigan law, parenting time disputes must be resolved through consideration of the best interest test and a special test that is applied to visitation disputes. The special test is set forth at MCLA 722.27a(6). The court may consider the following factors when determining the frequency, duration, and type of parenting time to be granted:
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 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.
Further, MCLA 722a(8) provides as follows:
(8) A parenting time order may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time by a parent, including 1 or more of the following:
(a) Division of the responsibility to transport the child.
(b) Division of the cost of transporting the child.
(c) Restrictions on the presence of third persons during parenting time.
(d) Requirements that the child be ready for parenting time at a specific time.
(e) Requirements that the parent arrive for parenting time and return the child from parenting time at specific times.
(f) Requirements that parenting time occur in the presence of a third person or agency.
(g) Requirements that a party post a bond to assure compliance with a parenting time order.
(h) Requirements of reasonable notice when parenting time will not occur.
(i) Any other reasonable condition determined to be appropriate in the particular case.
If a parent violates a parenting time order, the other parent may file a motion to find the offending parenting in “contempt of court.” The judge can then order the offending parent to pay attorney fees and can order make-up visitation time (or order a forfeiture of parenting time). Further, Michigan has adopted a parental kidnapping statute as have other states. These statutes are only enforceable if a court has entered a parenting time or custody order. If such an order has been entered, then the intentional abduction or detention of a child away from the parent with the right to possession can be prosecuted as a felony.
MCLA 750. 350a provides as follows:
(1) An adoptive or natural parent of a child shall not take that child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from any other parent or legal guardian of the child who has custody or parenting time rights pursuant to a lawful court order at the time of the taking or retention, or from the person or persons who have adopted the child, or from any other person having lawful charge of the child at the time of the taking or retention.
(2) A parent who violates subsection (1) is guilty of a felony, punishable by imprisonment for not more than 1 year and 1 day, or a fine of not more than $2,000.00, or both.
(3) A parent who violates this section, upon conviction, in addition to any other punishment, may be ordered to make restitution to the other parent, legal guardian, the person or persons who have adopted the child, or any other person having lawful charge of the child for any financial expense incurred as a result of attempting to locate and having the child returned.
(4) When a parent who has not been convicted previously of a violation of section 349, 350, or this section, or under any statute of the United States or of any state related to kidnapping, pleads guilty to, or is found guilty of, a violation of this section, the court, without entering a judgment of guilt and with the consent of the accused parent, may defer further proceedings and place the accused parent on probation with lawful terms and conditions. The terms and conditions of probation may include participation in a drug treatment court under chapter 10A of the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082. Upon a violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions of probation, the court shall discharge from probation and dismiss the proceedings against the parent. Discharge and dismissal under this subsection shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including any additional penalties imposed for second or subsequent convictions. The department of state police shall retain a nonpublic record of an arrest and discharge and dismissal under this section. This record shall be furnished to either or both of the following:
(a) To a court or police agency upon request for the purpose of showing that a defendant in a criminal action has already availed himself or herself of this subsection.
(b) To a court, police agency, or prosecutor upon request for the purpose of determining whether the defendant in a criminal action is eligible for discharge and dismissal of proceedings by a drug treatment court under section 1076(4) of the revised judicature act of 1961, 1961 PA 236, MCL 600.1076.
(5) It is a complete defense under this section if a parent proves that his or her actions were taken for the purpose of protecting the child from an immediate and actual threat of physical or mental harm, abuse, or neglect.
Because a custody order is required to prosecute an abduction, it is important to file an action or a motion for a custody order when parenting time may be disputed or an abduction is feared. Then, a police agency may be able to obtain the cooperation of the FBI in locating the parent and the child. In addition, if the child is transported to a country that has agreed to be bound by the Hague Convention, the non-offending parent may be able to enlist help in returning the child from the government of the country to which the child was taken. For a list of countries who are signatories to the Hague Convention, see http://hcch.e-vision.nl/index_en.php?act=states.listing
Effective January 2013, the Legislature added section 9 to MCLA 722.27a regarding the Hague Convention:
Except as provided in this subsection, a parenting time order 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. This subsection does not apply if both parents provide the court with written consent to allow a parent to exercise parenting time in a country that is not a party to the Hague convention on the civil aspects of international child abduction.
One of the reasons the Legislature added this new provision is that parental kidnapping and abduction often involves transportation of the child to a different country.
Because parental kidnapping is on the rise, it is advisable to have important information relating to your child readily available such as current photographs, height/weight info, dental records, and fingerprints. Teach your child his/her full name and address. Show him/her how to telephone you and/or call 911. Act immediately if your child is missing or not returned from parenting time in a timely manner.
Finally, the Friend of the Court has a visitation enforcement officer. If you are having problems getting parenting time with your child or getting your child back after parenting time with the other parent, write a letter to the Friend of the Court. Be specific about what happened, and include your case number. The Friend of the Court is unlikely to enforce your order if you do not complain in writing.
Children have an inherent right to a healthy relationship with both parents. You will give your child an important gift if you abide by court orders, avoid putting your child in the middle of conflict, and show respect for the other parent to the best of your ability.