8.8Parenting Time or Visitation

If a child is removed from the parent’s custody at any time, the court must permit the child’s parent to have regular and frequent parenting time with his or her child of “not less than 1 time every 7 days[,]” MCL 712A.13a(13), unless:

(1) the court determines that “exigent circumstances require less frequent parenting time[,]” MCL 712A.13a(13); or

(2) the court determines that “parenting time, even if supervised, may be harmful to the [child’s] life, physical health, or mental well-being[,] . . . [in which case] the court may suspend parenting time until the risk of harm no longer exists[,]” MCL 712A.13a(13); or

(3) a petition requesting termination of the parent’s parental rights was filed, and the court suspends the subject parent’s parenting time,¹ MCL 712A.19b(4), MCR 3.965(C)(7)(a), MCR 3.977(D); or

(4) the child has a guardian or legal custodian, MCR 3.965(C)(7)(a).

Note: If a child was living with a guardian or legal custodian, the court must determine what, if any, visitation it will permit the guardian or legal custodian to have with the child. MCR 3.965(C)(7)(b).

A parent’s right to parenting time with his or her child at any time after the child is removed from the parent’s care applies even after adjudication, except under the circumstances stated in MCL 712A.13a(13). In re L Ott, ___ Mich App ___, ___ (2022). “An automatic suspension of parenting time for a positive drug screen for THC absent any examination of and determination under [relevant] statutory provisions^[2] is invalid.” Ott, ___ Mich App at ___. In Ott, the “[r]espondent’s use of marijuana did not justify the denial of her parenting time with [her child] unless the court determined that as a result of her marijuana use, parenting time, even if supervised, may have been harmful to [the child’s] life, physical health, or mental well-being.” Id. at ___. Under the circumstances in Ott, the trial court was obligated to make a determination as to the respondent’s parenting time and the child’s life, physical health, and mental well-being. Id. at ___.

“The court may order the [child] to have a psychological evaluation or counseling, or both, to determine the appropriateness and the conditions of parenting time.” MCL 712A.13a(13).

The supervising agency must institute a flexible schedule to allow for the occurrence of supervised in-home visitation outside of the traditional workday to accommodate the schedules of the individuals involved. MCL 722.954b(3).

“In a proceeding under [MCL 712A.2(b)] or [MCL 712A.2(c)], if a [child] is removed from the parent’s custody at any time, the court shall permit the [child’s] parent to have regular and frequent parenting time with the [child]. Parenting time between the [child] and his or her parent shall not be less than 1 time every 7 days unless the court determines either that exigent circumstances require less frequent parenting time or that parenting time, even if supervised, may be harmful to the [child’s] life, physical health, or mental well-being. If the court determines that parenting time, even if supervised, may be harmful to the [child’s] life, physical health, or mental well-being, the court may suspend parenting time until the risk of harm no longer exists. The court may order the [child] to have a psychological evaluation or counseling, or both, to determine the appropriateness and the conditions of parenting time.” MCL 712A.18(1)(p).

A trial court is required “to permit ‘regular and frequent parenting time’ when a child is removed from a parent’s care,” even when the parent is incarcerated. In re Dixon (On Reconsideration), ___ Mich App ___, ___ (2023), quoting MCL 712A.13a(13) and MCL 712A.18f(3)(e). Under the circumstances in Dixon, the Court “reluctantly” affirmed the trial court’s initial refusal to transfer the child from the custody of the child’s foster parents to the custody of the person named by the father for placement of his child. Dixon, ___ Mich App at ___. However, the Court noted that “[g]oing forward, the [trial] court and the DHHS must tread carefully to avoid repeating their mistakes.” Id. at ___. The DHHS’s investigation of the placement the incarcerated father proposed was inadequate, and the Court ordered a reevaluation of the study and ordered that more details of the study be placed on the record. Id. at ___. Additionally, the DHHS had failed to arrange for the father to have video visits with his child as the trial court had ordered, and the Court ordered that this failure “be rectified immediately.” Id. at ___. Further, the DHHS had done little to provide the incarcerated father with services “even after he was named as a respondent.” Id. at ___. “At the very least, the caseworker [was required to] provide available workbooks for father to complete, as [had] been done in many other cases involving incarcerated parents.” Id. at ___.