HOUSE BILL NO. 5309

A bill to amend 1970 PA 91, entitled

"Child custody act of 1970,"

by amending section 5 (MCL 722.25), as amended by 2016 PA 96.

the people of the state of michigan enact:

Sec. 5. (1) If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control . If and all of the following apply:

(a) Except as provided in subdivision (b), if the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing a preponderance of the evidence. For the purpose of the presumption in this subdivision, a parent who fails to have contact with the child for the 3 years immediately preceding the date that the action for custody of the child was filed is considered a third person and is not considered a parent, unless the parent's failure is a result of 1 or more of the following:

(i) The parent's active duty or deployment.

(ii) The parent's incarceration.

(iii) The parent's medical condition.

(b) If the child custody dispute is between the parent or parents and a third person that is the custodian of the child's established custodial environment under section 7, the court shall not presume any of the following:

(i) That the best interests of the child are served by awarding custody to the parent or parents.

(ii) That the best interests of the child are served by awarding custody to the third person.

(c) If the child custody dispute is between third persons and only 1 of the third persons has ever been appointed guardian for the child, the court shall presume that the best interests of the child are served by awarding custody to that third person, unless the contrary is established by clear and convincing evidence.

(2) Notwithstanding any other provisions provision of this act, if a child custody dispute involves a child who is conceived as the result of acts for which 1 of the child's biological parents is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of the Michigan penal code, 1931 PA 328, MCL 750.520a to 750.520e and 750.520g, or a substantially similar statute of another state or the federal government, or is found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration, the court shall not award custody to that biological parent. This subsection does not apply to a conviction under section 520d(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520d. This subsection does not apply if, after the date of the conviction, or the date of the finding in a fact-finding hearing described in this subsection, the biological parents cohabit and establish a mutual custodial environment for the child.

(3) An offending parent is not entitled to custody of a child described in subsection (2) without the consent of that child's other parent or guardian.

(4) Notwithstanding any other provisions provision of this act, subsection (2) does not relieve an offending parent of any support or maintenance obligation to the child. The other parent or the guardian of the child may decline support or maintenance from the offending parent.

(5) A parent may assert an affirmative defense of the provisions of subsection (2) in a proceeding brought by the offending parent regarding a child described in subsection (2).

(6) Notwithstanding any other provisions provision of this act, if an individual is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of the Michigan penal code, 1931 PA 328, MCL 750.520a to 750.520e and 750.520g, and the victim is the individual's child, the court shall not award custody of that child or a sibling of that child to that individual, unless both the child's other parent and, if the court considers the child or sibling to be of sufficient age to express his or her the child's or sibling's desires, the child or sibling consent to the custody.

(7) As used in this section, "offending parent" means a parent who has been convicted of criminal sexual conduct as described in subsection (2) or who has been found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration as described in subsection (2).