Custody and Parenting Time After a Sex-Offense Conviction in Michigan

Michigan's Child Custody Act contains two flat bars tied to criminal sexual conduct (CSC). A court may not award custody or parenting time to a biological parent whose child was conceived through acts of CSC or nonconsensual sexual penetration, and it may not award custody of or parenting time with a child, or that child's sibling, to a person convicted of CSC against that child, unless the required consents are given.^[1][2][3] Outside those two situations a conviction is weighed under the ordinary best-interests standard.^[6]

If you or a child are in danger, call 911. Michigan's VOICES4 sexual assault hotline can be reached by call or text at 1-855-864-2374.^[8] The National Sexual Assault Hotline is free, confidential and open 24 hours a day at 800-656-HOPE (4673).^[9]

This page sets out the two statutory bars exactly as written, their exceptions, and how the general custody and parenting-time rules apply in every other case. Termination of parental rights is a different proceeding, covered in termination of parental rights and sexual abuse.

What is the general rule in a custody case?

In a custody dispute between parents, "the best interests of the child control."^[6] The "best interests of the child" are the sum total of twelve factors listed in MCL 722.23. They include the moral fitness of the parties, domestic violence, and any other factor the court considers relevant to the particular dispute.^[10]

One of those factors looks at each parent's willingness to encourage the child's relationship with the other parent. The statute adds a protection: a court may not consider negatively, for that factor, any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.^[10]

Parenting time has its own baseline. It is granted in accordance with the best interests of the child, and a child has a right to parenting time with a parent "unless it is shown on the record by clear and convincing evidence that it would endanger the child's physical, mental, or emotional health."^[7]

The two bars below override those general rules. Each begins with the words "Notwithstanding other provisions of this act."^[1][2]

Bar 1: a child conceived through criminal sexual conduct

MCL 722.25(2) applies where a custody dispute involves a child conceived as the result of acts for which one of the child's biological parents:^[1]

• is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of the Penal Code, or a substantially similar statute of another state or the federal government; or^[11][1]
• is found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration.^[1]

In either case, "the court shall not award custody to that biological parent."^[1]

Two exceptions

• The bar does not apply to a conviction under MCL 750.520d(1)(a).^[1] That is the third-degree CSC provision based on the complainant's age (13 through 15) alone.^[12]
• The bar does not apply if, after the date of the conviction or of the finding in the fact-finding hearing, the biological parents cohabit and establish a mutual custodial environment for the child.^[1]

Consent, support and how the bar is raised

The statute calls the barred parent the "offending parent." An offending parent is not entitled to custody of the child without the consent of the child's other parent or guardian.^[5]

The bar does not cancel financial responsibility. It "does not relieve an offending parent of any support or maintenance obligation to the child," although the other parent or the guardian may decline support or maintenance from the offending parent.^[5]

A parent may assert the bar as an affirmative defense in a proceeding brought by the offending parent regarding the child.^[5]

Bar 2: a parent convicted of CSC against his or her own child

MCL 722.25(6) applies where an individual is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g and the victim is the individual's child. In that case 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 desires, the child or sibling consent to the custody."^[2]

Three things about that wording are easy to miss.

• It requires a conviction. Unlike Bar 1, this subsection has no alternative based on a finding in a fact-finding hearing.^[2][1]
• It reaches siblings of the child who was the victim, not only that child.^[2]
• The consent that lifts the bar is the other parent's and, where the court considers the child or sibling old enough to express his or her desires, the child's or sibling's too.^[2]

The offenses covered by sections 520a to 520e and 520g are the four degrees of CSC and assault with intent to commit CSC. They are explained in the overview of Michigan's criminal sexual conduct law and, for family cases, in CSC involving relatives and household members.

Do the same bars apply to parenting time?

Yes. The parenting-time statute repeats both.

Situation	Custody (MCL 722.25)	Parenting time (MCL 722.27a)
Child conceived through acts for which a biological parent is convicted of CSC, or found by clear and convincing evidence in a fact-finding hearing to have committed nonconsensual sexual penetration	The court shall not award custody to that parent[1]	The court shall not grant parenting time to that parent[4]
Exceptions to that bar	A conviction under MCL 750.520d(1)(a); later cohabitation establishing a mutual custodial environment[1]	The same two exceptions[4]
Person convicted of CSC where the victim is the person's child	No custody of that child or a sibling without the required consents[2]	No parenting time with that child or a sibling without the required consents[3]

As with custody, a parent may assert the conceived-child bar as an affirmative defense in a parenting-time proceeding brought by the offending parent.^[4]

What if neither bar applies?

Many situations fall outside both bars: a conviction involving a victim who is not the person's child, a registrable offense that is not CSC, or an allegation that has not led to a conviction. In those cases the court decides under the best-interests factors and the general parenting-time standard.^[6][7]

The parenting-time statute gives the court tools short of a complete denial. In deciding the frequency, duration and type of parenting time, the court may consider the reasonable likelihood of abuse or neglect of the child during parenting time. A parenting-time order may contain reasonable conditions, including restrictions on the presence of third persons and a requirement that parenting time occur in the presence of a third person or agency.^[13]

How a court weighs a particular conviction under those factors is a case-by-case decision, and practice varies by court. This page does not predict it.

A pending criminal case can affect contact before any family-court decision, because bond conditions in the criminal case may restrict contact. See bond in CSC cases. A child-protective investigation is a further, separate track, covered in CPS investigations of sexual abuse.

How do custody rulings relate to termination of parental rights?

They are different proceedings under different statutes. A custody or parenting-time order under the Child Custody Act decides where a child lives and what contact a parent has. Termination of parental rights is decided under the juvenile code, where a parent's conviction of first- through fourth-degree CSC or assault with intent to commit CSC is one of the listed grounds if the court also determines that termination is in the child's best interests because continuing the parent-child relationship would be harmful to the child.^[14]

Does being on the registry by itself bar custody?

The two bars in the Child Custody Act turn on a CSC conviction (or, for a conceived child, a fact-finding) and on who the victim was.^[1][2] Neither is written in terms of registry status. Registration brings its own consequences for daily life, including a child care licensing bar for people registered or required to be registered.^[15] Those are covered in registry, jobs, housing and daily life.

What people get wrong

• "Any sex-offense conviction means no contact with your children." The statutory bars cover two defined situations; other cases are decided under the best-interests and endangerment standards.^[1][2][7]
• "Without a criminal conviction the rape-conception bar cannot apply." It also applies on a finding, by clear and convincing evidence in a fact-finding hearing, of nonconsensual sexual penetration.^[1]
• "A parent barred from custody owes no support." The support obligation continues.^[5]
• "A protective parent will be penalized for limiting contact." A court may not count against a parent any reasonable action taken to protect a child or that parent from sexual assault by the other parent.^[10]

Parents responding to a child's disclosure can start with when a child discloses sexual abuse. Protective orders are covered in sexual assault PPOs, and the sister guide covers custody where domestic violence is alleged: domestic violence and child custody.