The Friend of the Court makes recommendations to the Court on the content of the Court's orders and their enforcement.
The jurisdiction of the Court over the parties and the children involved in divorce, custody, support and visitation actions starts as soon as a case is filed. It may continue long after a judgment is granted.
Each party has many responsibilities and duties in a domestic relations case. The first duty and responsibility is to obey the Orders issued by the Court. Failure to obey a court order can result in contempt proceedings.
We are well aware that during the process of separation/divorce you and your children will have difficulty in adjusting. Our office has staff trained and willing to assist you in this process. We hope that when you have questions or problems that you will discuss them with your case manager. If they are unable to render assistance they will be glad to refer you to someone in the community who has the skill and expertise to assist you.
A large part of the adjustment to divorce is emotional. Your children may have difficulty adjusting to the breakup of the family. There are some ways you as parents can help:
TALK TO YOUR CHILDREN
Kids need to know what is happening to them. Divorce is a very scary time for kids. They need to know what will change and what will be the same. Do not use this time as an opportunity to list the faults of the other parent. A simple explanation that lets them know what is happening without putting them in the middle of the conflict is sufficient.
REASSURE THEM OF YOUR LOVE
Children may think that if Mom and Dad can stop loving each other, that they could stop loving them too. They need to be reassured over and over again that your love for them will continue even if Mom and Dad no longer love each other.
ENCOURAGE FREQUENT CONTACT WITH BOTH PARENTS
Besides telling your kids that you still love them, they must continue to have regular and frequent contact with both parents. Separation is frightening for children and they will benefit from being able to spend time with both parents. Even a telephone call to your child can make them feel very special.
Rights and Responsibilities
Each party to a dispute has the right to meet with the individual investigating the dispute before that individual makes a recommendation regarding the dispute. If requested by a party, an investigation shall include a meeting with the party. If a party who requests a meeting during an investigation fails to attend the scheduled meeting without good cause, the investigation may be completed without a meeting with that party.
Each party has the right to:
- Expect the Friend of the Court to perform the duties required by Michigan statute and court rule.
- Expect the Friend of the Court to explain its policies and procedures.
- Be treated fairly by Friend of the Court employees.
- File a grievance with the Friend of the Court office concerning an employee or office procedure.
- Consult with his/her own attorney about any questions or concerns.
Each party has a responsibility to:
1. Inform the Friend of the Court, in writing, of the following information:
- Current address.
- Current employer or source of income.
- Current residence of children.
- Current information regarding health care coverage available as a benefit of employment or maintained by either party.
2.Provide information to the Friend of the Court to assist the office in carrying out its duties as required by law.
3.Obey all orders of the court.
4.Keep appointments made with the office, or take the time to cancel or reschedule the appointment.
5.Treat Friend of the Court employees with fairness, respect, and courtesy.
As a citizen using the court, you have a right to:
- Be treated with fairness, respect, and courtesy.
- Expect court proceedings to begin on time and proceed in an orderly manner.
- Expect un-biased treatment from judges, court employees, and attorneys.
- Object to gender or racially biased statements or remarks made by judges, court employees, or attorneys.
- Expect that the judge and the attorneys in a case are prepared to hear/try your case.
- Consult with an attorney regarding a legal proceeding.
- Ask questions of your attorney before or after your scheduled court appearance. If you are representing yourself, you may ask the court for clarification on an action or procedure.
- Request that the court provide an interpreter if you are unable to communicate in English or are hearing impaired.
- Expect reasonable accommodations for your disability.
As a citizen using the court, you have the responsibility to:
- Treat the judge, court employees, and attorneys with fairness, respect, and courtesy.
- Monitor your own behavior, attitudes, and comments to ensure that you do not display bias due to race, ethnic or religious affiliation, or gender.
The Office Of The Friend Of The Court
Michigan law created Friend of the Court offices in 1919, and there is at least one office serving each circuit court's family division.
Friend of the Court offices have the following duties:
1. When parents cannot agree, or when directed by the judge, to conduct investigations and make reports and recommendations to the court regarding:
- Parenting time (which may include transportation)
- Amount of child support (including medical support, and in limited situations spousal support)
2. To offer mediation, when both parents agree to participate, as an optional way of settling disagreements over custody or parenting time of children.
3. To collect, record, and send out all support payments as ordered by the court.
4. To provide enforcement services on all custody, parenting time, and support orders entered by the court.
This handbook also addresses the basic duties of parties when the court has issued an order for custody, parenting time, or support.
This handbook describes general duties of the Friend of the Court. Specific procedures are established by local offices and may vary from office to office. Any questions regarding local procedures or requirements outlined in this handbook may be discussed with your local Friend of the Court, or with an attorney of your choice.
To become familiar with some legal terms, please refer to the glossary.
Procedures Of The Court
Anyone who wants to start a case must file the correct papers in the family division of the circuit court according to specific rules (Michigan Court Rules). The court cannot require a party to use an attorney to start, or to respond to, a case. Cases sometimes involve many difficult questions, and it may be wise to have an attorney file the correct papers.
Each case begins with the plaintiff filing papers (complaint or petition) which asks the court to grant an order. A complaint or petition may ask the court to:
- Grant a divorce.
- Order child support or spousal support.
- Establish paternity.
- Start an out-of-state support collection effort.
- Grant an order for custody of a child.
- Establish parenting time with a child.
The defendant is the person upon whom the complaint is filed.
The Michigan Court Rules state that the defendant must be given a copy of the summons and complaint and a Friend of the Court informational handbook whenever minor children are involved or spousal support is requested. The summons asks the defendant to answer the complaint. The summons and complaint must be delivered in a way that the defendant has notice a case has been started against him/her.
Defendant´s Answer to Complaint
Once the defendant receives the papers, (s)he is allowed time to answer the claims made. If an answer is not filed within the time frame permitted (usually 21 days), the defendant may lose the right to have his/her concerns heard by the judge. This could result in an order granting the plaintiff's requests.
Domestic RelationsA person who wants to end his/her marriage must have a family division judge enter a judgment of divorce bringing an end to the marriage. To grant the divorce, the judge must find that there has been a breakdown in the marriage to the point that the parties cannot live together as husband and wife. At least one of the parties must appear in court and confirm that this breakdown has happened. In Michigan, a divorce can be granted even if one of the parties does not want the divorce.
A divorce ends the legal relationship between a husband and wife. A divorce does not end the family relationship, although the relationship will change.
Many decisions should be made before a judgment of divorce is granted. These decisions may include:
- How will the parties provide guidance and care for the children? (legal custody)
- How much time will the children spend with each parent? (physical custody and/or parenting time)
- How will financial responsibilities for the children be divided? (support)
- How will the children's medical, dental and other health care expenses be paid? (health care coverage)
- Will children be allowed to permanently move from the State of Michigan? (domicile)
- What amount, if any, should one party contribute toward spousal support, either for a short time or on a permanent basis?
- How should property gathered during the marriage be divided? (property settlement)
- Will the wife change her name?
Divorce issues may be decided in many ways. For example:
- The parties may reach an agreement by themselves, or by working with their attorneys.
- Mediation is available through the Friend of the Court or private agencies to resolve disagreements over custody and parenting time.
- In some family divisions, a Friend of the Court referee may hear the issues and make a recommendation to the judge.
- The judge may help in settling a case by having a pretrial or settlement conference.
- The judge may hold a hearing or trial on issues that cannot be otherwise resolved.
Copies of all papers filed in a case must be given to the court clerk and also must be given to the Friend of the Court by the person starting the case or by their attorney. The Friend of the Court office will make recommendations on custody, parenting time, and child support if directed to do so by the judge.
Ex Parte Orders (orders entered without either party having to appear in court)
Sometimes a judge will immediately enter a custody, parenting time, or child support order upon request of one of the parties. This happens when the judge is shown that serious damage will occur if the other party is served with the papers before an order can be entered.
If a party disagrees with an ex parte order, he/she must file a written objection to the order, or file a motion with the court to change or cancel the order.
When an ex parte order contains child support, custody, or parenting time, the order must also include a notice that allows a written objection or motion to be filed within 14 days. If a party wishes to file an objection, and the Friend of the Court cannot help the parties settle the dispute, the Friend of the Court will provide forms and instructions for filing an objection; and schedule a hearing with the court.
The ex parte order must state that it will become a temporary order unless a written objection or motion is filed within 14 days.
After a complaint has been filed, temporary custody, parenting time, child support, and sometimes spousal support may need to be decided. Either party, or in some cases the Friend of the Court, may file a motion with the court asking for such an order.
If a hearing before a referee or judge is scheduled, both parties must be notified of the time and place. At the time of hearing, each party can offer his/her ideas to the court. The decision made by the court is written down by the attorneys or parties and put in the form of an order. An order is not valid until it has been signed by the judge and filed with the county clerk. A referee can hear disputes, but can only make recommendations to the judge. Only a judge can enter orders or judgments.
Reconciliations and Dismissals
Not every case ends in a divorce. If parties are trying to work out their differences and wish to have enforcement of their order stopped, they may file a motion with the family division and obtain an order to suspend automatic enforcement. Enforcement of a support obligation cannot be stopped except by court order.
If parties wish to stop a divorce, they must file an order of dismissal with the family division, and provide a copy to the Friend of the Court. Any past due support owed the State of Michigan must be paid.
Judgment of Divorce
A judgment of divorce contains the orders of the court which deal with custody, parenting time, financial support, property, and other related issues.
There is a minimum waiting period from the date of the filing of a complaint for divorce. For divorce cases without minor children this waiting period is a minimum of sixty days. For divorce cases involving minor children this waiting period is a minimum of six months.
Modification of a Judgment of Divorce
After a judgment of divorce has been entered, there are some parts that can be modified in the best interests of the children. These include custody, parenting time, financial support of children, and domicile.
A change can only occur if it is ordered by the court after:
(1) Both parties have mutually agreed to change the judgment and sign an agreement (stipulation and consent agreement) which, when signed by the judge will be entered as an order; or
(2) A motion has been filed, a court hearing has been held, and the judge grants a change.
Agreements reached between parties are only recognized by the court and the Friend of the Court when those agreements are entered as an order of the court. Simply notifying a Friend of the Court employee or a Family Independence Agency worker of an agreement does not change the court order.
Sometimes, the Friend of the Court has an obligation to petition the court for a change. (See Parenting Time Enforcement section and Support Order Modification section).
Family Support Actions
A person who has a minor child living with him/her and who is separated from the child's other parent, with no divorce case having been filed, may seek a family support order (see Family Support Act). A parent who has a child born out of wedlock may also seek a family support order if the father has been legally determined by both parents signing an affidavit of parentage form.
Generally, family support cases are started by the prosecuting attorney after a referral from the Michigan Family Independence Agency. The Family Independence Agency makes referrals whether or not a person receives public assistance. A person may also file his/her own action or contact a private attorney to file a family support case.
The Family Support Act does not address custody and parenting time, but some courts may allow these issues to be included in a family support order. You may ask the prosecuting attorney or your private attorney about local court policy before an order is entered.
If parties reunite and decide to end the family support order, they must petition the court for an order of dismissal. After the order is signed by the judge and filed with the court clerk the Friend of the Court must be given a copy. (Simply notifying a Family Independence Agency caseworker or Friend of the Court employee does not end the court's support order.)
When the Friend of the Court receives a copy of the order of dismissal, the family support order will stop. Some courts will not dismiss a family support case on the basis of reconciliation. However, they will allow the case to be placed on inactive status. The case will remain inactive as long as the parties stay together and no public assistance is involved.
A family support order does not prevent either party from filing for divorce. However, the family support order will remain in effect until a Judgment of Divorce is granted. If back support is owed under the family support order, arrangements to pay this money must be made with the Friend of the Court.
When a child is born to a mother who is not married to the child's father, legal processes can be used to establish the father's rights and responsibilities. If the child is born out of wedlock, the father and mother can sign an approved affidavit of parentage form to legally establish that the father has parental rights. Those forms are available through the Family Independence Agency, prosecuting attorneys, and hospitals.
If an acknowledgment of parentage form is not signed by both parents, either parent can file a paternity action to have the court determine the legal father of the child. The action can be filed any time before the child reaches age 18. This type of action may also be filed by the Family Independence Agency or the child.
Generally, paternity cases are started by the prosecuting attorney after a referral from the Michigan Family Independence Agency, which makes referrals regardless of whether a person receives public assistance. A person may also file his/her own paternity action or contact a private attorney to file the action. You may find more information about establishing paternity in the pamphlet, "What Every Parent Should Know About Establishing Paternity." The pamphlet is available through several sources, including the Michigan Office of Child Support (a part of the Family Independence Agency).
Once paternity has been established, the court may order custody, financial child support, repayment of birth and delivery expenses of the child, and payment of ongoing health care expenses for the child.
As of October, 1995, custody and parenting time should be ordered in paternity actions. However, the prosecuting attorney or any other attorney appointed by the court is not required to represent either party in deciding these issues. If the parties cannot agree upon custody or parenting time issues, they may need to represent themselves or retain a private attorney. The Friend of the Court cannot help with parenting time issues unless a court order for parenting time has been entered.
If the parties to a paternity action reconcile or marry each other, they should immediately contact the Friend of the Court to discuss how their case can be placed on inactive status. Arrangements must be made to pay all money owed to any public agency.
Child support obligations remain in effect regardless of where you live, unless changed by a court order. There are serious legal consequences if orders are not followed. Laws are complicated and vary from state to state.
If either parent leaves the State of Michigan, it does not mean that the child support obligation ends. Both parents have a duty to keep the Friend of the Court advised of their residence and employment. The payor must continue to pay support through the Friend of the Court to assure the recipient continues to receive support. The Friend of the Court has a responsibility to continue enforcing the order of the court.
It is important to remember that a parent's obligation to his or her children continues whether or not you reside in the same state. There are serious consequences for failure to abide by a court order.
If support payments are not timely, or stop altogether, there are laws between each state to assure that payments are made. Laws to enforce support include:
- Uniform Interstate Family Support Act (UIFSA)
UIFSA assists states in dealing with cases where a party or source of income is in another state. It replaces other interstate child support laws. Under UIFSA, only one state has the right to establish or modify support. This right can be given to another state only if certain conditions are met (such as both parents and the child moving from the state that entered the original order).
This act became effective in Michigan on June 1, 1997. If you know that the support payor in your case has moved to another state, contact the Friend of the Court to determine whether you can obtain assistance under UIFSA. Some of the procedures available under UIFSA follow:
- Interstate Income Withholding
This process allows the Friend of the Court to send a Michigan court order directly to an employer in another State, requiring the employer to deduct child support and send it to the Friend of the Court. If the employer fails to withhold the support, the income withholding order can be registered in the other state. The other state can then assist in getting the employer to withhold the support.
- Registration of the Michigan Court Order for Enforcement
The Friend of the Court or a private attorney can help with this process. Registration for enforcement allows another state to take the Michigan order and enforce the full amount of support as if it were that state's own, original order.
- Registration for Modification
When Michigan or another state no longer has jurisdiction to modify the support order (e.g., neither party or the child lives in the state that issued the order), and the order needs modification, the order may be registered in the state where the other party lives.
- Assistance with Discovery in Another State
UIFSA provides some assistance in obtaining information needed for support hearings if one of the parties lives in another state. See your Friend of the Court office for more information regarding what assistance is available.
- Revised Uniform Reciprocal Enforcement of Support RURESA) Action
RURESA preceded UIFSA. It was an interstate law which allowed establishment and enforcement of child support orders in the state where the support payor lived.
If a RURESA order was established in your case, it will continue to be enforced. However, if that order needs to be modified after June 1, 1997, modification will occur in accordance with the requirements of UIFSA.
Duties Of The Friend Of The Court
Alternative Dispute Resolution
If you are a party to an action and have a dispute that you cannot resolve between you and the other party or parties, you are encouraged to participate in alternative dispute resolution. Typically, when parties go to court, decisions affecting their family are made by the judge, based upon available evidence and according to law. Often times parties feel that going to court and having a judge make the decision results in a sense of loss, because decisions are made by someone not directly affected by the outcome. Alternative dispute resolution places the responsibility for settling issues upon parties, without the direct involvement of the court. Alternative dispute resolution may involve parents, grandparents, and even third parties. It maintains the decision making power for families in the hands of people who have a personal interest in, and knowledge of, that family, and not with the judge or another third party.
Alternative Dispute Resolution may include:
Friend Of The Court Mediation
By law, the Friend of the Court is required to provide mediation services whenever there is a dispute regarding custody or parenting time. These services can be provided by a Friend of the Court employee, or the Friend of the Court may contract to have a private mediator provide the services.
Mediation provides parents the opportunity to communicate and cooperate and, with the assistance of a neutral third patty, resolve any disputes regarding custody or parenting time. There is typically no cost for Friend of the Court mediation.
If you have a dispute regarding custody or parenting time that you cannot resolve between you, you are encouraged to contact the Friend of the Court and participate in mediation.
Participation in Friend of the Court mediation is voluntary; both parties must be willing to participate. If you reach an agreement, the mediator can prepare a consent agreement. You may review this agreement with your attorneys before it is entered as an order. If parties agree, the consent agreement will be put in the form of a court order, signed by the judge and entered with the court clerk.
Matters discussed during a mediation are confidential. A Friend of the Court employee who acts as a mediator in your case cannot share information about what happened during mediation, except for the agreement reached. In addition, a Friend of the Court employee who acts as a mediator in your case cannot enforce or investigate any issues regarding your case.
Court Ruled Mediation
The court may refer family matters to mediation under the Michigan Rules of Court (MCR 3.216). This referral may occur when the parties agree to mediation, upon written motion of one of the parties, or upon the direction of the court.
Mediation under the court rule must be conducted by an attorney who has at least five years of experience in law, and a great deal of experience in family law matters.
Parties must attend the mediation sessions and may be accompanied by their attorneys. Any information shared with the mediator is considered privileged and the mediator may not disclose this information during any future proceedings or at trial.
If an agreement is reached during mediation, that agreement must be reduced to writing and signed by the parties and their attorneys. The parties must take necessary steps to have the mediation agreement entered as an order of the court.
If no agreement is reached during mediation, then within 21 days the mediator must prepare a report to the parties, their attorneys and the mediation clerk summarizing the essential facts and include any recommendations on issues. The mediator may not make a recommendation on custody, unless the parties resolved a custody issue during mediation.
If both parties accept the mediator's recommendation, the parties must take necessary steps to have the recommendation entered as an order.
If either party rejects the mediator's recommendation, even in part, the case will go to trial. The court may not take the mediator's report and recommendation into consideration at trial.
An individual who performs Court Rule Mediation is entitled to reasonable fees, which are usually divided equally between the parties.
In some circuits, parties who have a dispute may participate in arbitration. Arbitration, also known as binding mediation, may be conducted by an individual or a panel. The arbitrator(s) will consider the parties issues and may consider the input of witnesses. If the parties cannot agree on issues, the arbitrator will make a determination based upon the information available.
Once the arbitrator makes his/her decision, that decision is binding upon the parties, unless the court vacates the decision based upon evidence that the arbitrator was biased, exceeded his or her powers, refused to hear evidence or was otherwise prejudiced.
If the arbitrator's decision is not vacated, it will be enforced by the court in the same way as any other order of the court.
A number of custody arrangements are possible. The most common are:
Joint Legal Custody: Means that parents will communicate and cooperate with one another and attempt to reach mutual decisions regarding major issues affecting their children. This decision making process includes, but is not limited to: major medical decisions, educational decisions, and religious upbringing, if any.
Joint Physical Custody: Means that children live with one parent part of the time and the other parent part of the time. This time does not have to be equal. The parent who has care of the children at any given time is responsible for routine decisions regarding the children.
Primary Physical Custody: Means that the children live primarily with one parent.
Sole Custody: Means that the children live with one parent and that parent is responsible for making major decisions regarding the children.
Parents are encouraged to reach their own agreements regarding custody. When parents cannot agree, the judge must decide by considering all of the following factors of the Michigan Child Custody Act. (MCL 722.23;MSA 25.312(3)
(a) The love, affection and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and the continuation of the educating and raising of the child in its religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care and other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f)The moral fitness of the parties involved.
(g)The mental and physical health of the parties involved.
(h) The home, school and community record of the child.
(i)The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
(j)The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k)Domestic violence, regardless of whether the violence was directed against, or witnessed by the child.
(l)Any other factor considered by the court to be of relevance to a particular child custody dispute.
How do I get an order for custody?
A petition must be filed requesting custody. If parents agree, they may sign an agreement (stipulation and consent agreement), and obtain the judge's approval. That agreement can then be entered as a custody order.
How do I change an existing order for custody?
A petition must be filed to change a custody order. If parents agree, they may sign an agreement (stipulation and consent agreement) and obtain the judge's approval. That agreement will then change the custody order.
Can I file my own motion to change custody?
You may file your own petition, known as an In Pro Per or Pro Se (which means, essentially, "on your own") motion. The office of the Friend of the Court will provide forms and instructions to any party who wishes to file this type of motion. However, it is important to remember that the court will still hold you to the same rules to which an attorney would be held. There may be many complex issues involved in a custody case and you may wish to have an attorney represent you. The Friend of the Court office cannot file a motion for you, nor can it provide you with an attorney.
Is there any way the Friend of the Court can assist parties in reaching an agreement regarding custody?
The Friend of the Court will provide domestic relations mediation whenever there is a custody dispute. Mediation allows an impartial third party to assist parents in settling their custody dispute. Both parties must agree to participate in mediation .
The Friend of the Court is required to:
(1) Offer mediation services to the parties; or
(2) If directed by the judge, conduct an investigation and file a written report and recommendation based upon the factors listed in the Michigan Child Custody Act (See Page 16).
Do I have the right to receive a copy of the Friend of the Court report and recommendation on custody?
The Friend of the Court must give each party, or his/her attorney, a copy of the report, recommendation and supporting information, or a summary of the information, used in making the recommendation. This report must be provided before the court takes any action on the recommendation.
What happens if I have an order for custody and the other parent does not return the child to me as stated in the court order?
- You may contact the Friend of the Court and request enforcement.
- You may contact your attorney.
- If you have reason to believe the other parent does not intend to return the child, you may contact the police or the prosecuting attorney and request that parental kidnapping charges be filed.
How do I enforce a custody agreement if the other parent has taken the child to another country?
When a child of U.S. citizenship is abducted outside of the country, the State Department's Office of Children's Issues works with U.S. embassies and foreign authorities to assist the child and custodial parent. However, child custody disputes are private legal matters between two parents and the Department of State has no jurisdiction. If a child custody dispute cannot be settled, it often must be resolved by judicial proceedings in the country where the child is located. The State Department can assist parents in filing an application with foreign authorities and monitoring judicial or administrative proceedings for the return of the child.
How do I contact the Office of Children's Issues at the Department of State?
You can write to the Office of Children's Issues, Overseas Citizens Services, Department of State, 2201 C Street, NW, Room 4817, Washington, DC 20520-4818. That office also can be reached by phone at 202-736-7000, by fax at 202-647-2835, or on the Internet at http:/Itravel.state.gov.
Does the Friend of the Court have an obligation to investigate alleged abuse or neglect of a child?
No. Allegations of abuse or neglect should be reported to the Protective Services unit of your local Family Independence Agency office.
The Friend of the Court office has a duty, when ordered by the court, to conduct an investigation when a party files a custody, or parenting time, petition. Claims of abuse or neglect should be disclosed to the Friend of the Court office during its investigation.
Can my child enroll in the school district I live in, even though the child lives with the other parent most of the time?
Michigan law provides that a child may enroll in a school district where either parent resides, regardless of which parent has custody. Where a child regularly resides in two school districts as a result of a joint custody order, the child may attend school in either or both of the districts.
Parenting Time Orders
A parenting time order grants time between the parent who does not have custody, and the children. The Michigan Child Custody Act (MCL 722.27a, MSA 25.312(7a)) states;
"[Normally], parenting time shall he granted to a parent in a frequency, duration, and type to promote a strong relationship between the child and the parent granted parenting time. If the parents of a child agree on parenting time terms, the court shall order the parenting time terms unless shown that the parenting time terms are not in the best interests of the child. A child shall have a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that the parenting time would endanger the child's physical, mental, or emotional health."
During a person's parenting time, that parent is responsible for all routine decisions affecting the child.
The Michigan Child Custody Act states that the judge 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 to and from the parenting time.
(f)Whether the visiting parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g)Whether the visiting 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.
Parenting Time Enforcement
The Friend of the Court is required to provide enforcement services regarding orders for parenting time.
The Friend of the Court must begin enforcement when it receives a written statement containing specific facts. This statement must be filed within 7 days of the alleged violation, and should include dates, times, and reasons given about any claimed denial of parenting time. A party has the right to request the Friend of the Court to provide assistance in preparing a written complaint about parenting time.
If the Friend of the Court believes that the parenting time order has been violated, the office may:
(1) Schedule a meeting with the parties and attempt to resolve the dispute; or
(2) Refer the parties to a mediator if they agree to mediation.
If either of the above options are not successful, the Friend of the Court shall do one or more of the following:
(1) Apply local make-up parenting time policy. Each office is required to have such a policy. Contact your local office for more information.
(2) Schedule a contempt of court hearing. At the time of this hearing, the parent who is ordered to appear in court is required to show "good cause" why he/she is not obeying the court's order for parenting time. If the court decides the parent is in violation of the court order, the court may impose penalties including make-up parenting time, fines, license suspension, and jail time.
(3) Petition the court for a change in the existing parenting time order. A report and recommendation will be provided in writing to the parties or their attorneys before any court hearing.
Parenting Time Modifications
An individual may file his/her own motion for a change in his/her parenting time order. This is known as an In Pro Per, or Pro Se, parenting time modification. The office of the Friend of the Court will provide forms and instructions to any party who wishes to file this type of motion without the benefit of an attorney.
A party may also contact an attorney to file a motion requesting a change in the parenting time order.
If both parents agree (stipulate) to change the parenting time order in a way that benefits their child, they may sign an agreement (stipulation). Once that agreement is put in the form of an order, signed by the judge, and filed with the county clerk, it will become an order of the court.
Parenting Time Q&A
My order for parenting time states I have "reasonable” parenting time (or visitation). What does this mean?
As parents, you have a responsibility to arrange a schedule of parenting time (previously called visitation) which is reasonable based upon the best interest of the child(ren) and your family situation.
If you cannot agree upon a "reasonable" schedule of parenting time, you have the following options:
- See if the other parent will agree to mediation or counseling.
- Ask the Friend of the Court to file a petition with the court to change your order to require a specific schedule.
- File a petition on your own or contact an attorney.
I have a specific parenting time schedule that I would like to change. What can I do?
- See if you and the other parent can agree to a change. This change, along with the reasons for this change, may be presented to the court as a proposed new court order of parenting time. An agreement between parties without a court order is not enforceable.
- The Friend of the Court will provide mediation, if both parents agree to participate.
- File a petition with the court for a change in the order on your own, or contact an attorney.
Child support payments are not being made. Do I have to allow parenting time?
Yes. Parenting time and support are separate parts of a court order with separate enforcement procedures (See Support Enforcement section).
The other parent is not sending or returning clothing or other personal items for our child. Is there anything the Friend of the Court can do?
The Friend of the Court enforces the written order of the court. If your court order does not address clothing and/or other personal items, try to work it out with the other parent or through means such as Friend of the Court mediation. If that is unsuccessful, you may file a petition with the court requesting clothing and/or other personal items to be sent for, or returned after, parenting time.
The other party is not following the parenting time order. What can I do?
File a written complaint with the Friend of the Court. If the Friend of the Court believes the parenting time order has been violated, it shall start enforcement action. (See Parenting Time Enforcement section).
It appears that the other parent has been drinking or using drugs. Do I have to let the children go?
That is your decision as a parent. If you violate the court order in such a situation, you may have to explain to the court, at a "show cause" hearing, why you should not be held in contempt for your decision, which you felt was in the best interests of the children.
I have asked to telephone my children at the other parent's home; (s)he says no. What can the Friend of the Court do?
The Friend of the Court enforces the written order of the court. If your court order does not provide for telephone calls, try to work it out with the other parent or pursue other methods of resolution such as Friend of the Court mediation. If that is unsuccessful, you may file a petition with the court requesting additional parenting time through telephone access.
The Friend of the Court will not help enforce my parenting time order. What can I do?
The law requires the Friend of the Court to provide enforcement services regarding parenting time orders. If you believe the Friend of the Court is not trying to enforce the order, you may file a grievance regarding their procedures (See Complaints section). You may also file a petition for enforcement.
I am concerned that my child is being abused when with the other parent. What should I do?
Report your concerns to the Protective Services unit of the Family Independence Agency. You may also wish to provide your Friend of the Court office with a written copy of your concerns so that they may be made a part of your file. The Friend of the Court office, however, does not have the authority to investigate and remove children in abuse or neglect matters. This is done by Protective Services through an action filed in the family division.
My child does not want to engage in parenting time with the other parent. What can I do?
Parents are to obey court orders, regardless of the child's age. It is the parent's responsibility to promote a positive relationship with the child and the other parent. You may want to try the following options:
- Work out a different arrangement with the other parent.
- Contact the Friend of the Court and request mediation or seek counseling.
- File a petition with the court asking for a change in your parenting time order.
- Request the Friend of the Court provide enforcement of the parenting time order (See Parenting Time Enforcement).
The other parent refuses to see our children. What can the Friend of the Court do?
The Friend of the Court cannot force a parent to engage in parenting time with his/her children. It is the parent's duty to promote a positive relationship with the children and the other parent. Your options include: counseling, mediation, and filing a petition for change of the parenting time order.
A support order is any order entered by the family division which requires the payment of support.
Support may include:
- Child support.
- Spousal support.
- Payment of medical, dental and other health care.
- Payment of confinement expenses.
- Payment of child care expenses.
- Payment of educational expenses.
Support Investigations and Reports
The Friend of the Court is required to periodically review child support provisions, including health care, and petition the court for a change in the order if a change is warranted (See Modification of a Support Order section).
Otherwise, when directed by the judge, the Friend of the Court will conduct a financial investigation and make a written report and recommendation to the parties (or his/her attorneys) and the judge regarding child support. Friend of the Court reports cannot be used as evidence in court without the agreement of both parties. The Friend of the Court investigator may be called as a witness to testify about their report.
Child Support Formula
Michigan law requires that the child support formula be used by the Friend of the Court or Prosecuting Attorneys when recommending, and by judges when ordering, child support amounts. The Friend of the Court's recommendation and the judge's determination can only vary from the formula when there is clear reason, either in writing or on the court record, stating why use of the formula would be "unjust or inappropriate."
In Michigan, the child support formula considers both parents' incomes when establishing or changing support.
To purchase a copy of the Michigan Child Support Formula Manual, send your request, along with a check or money order for $5.00 payable to the "State of Michigan" to:
Department of Management and Budget
Office Services Division
P.O. Box 30026
Lansing, MI 48909
Unless otherwise ordered, support is paid through the Friend of the Court.
The Friend of the Court must forward support to the recipient within 14 days of the date the support is received by the Friend of the Court.
Once a year, upon written request, the Friend of the Court will provide parties with a statement of account free of charge.
Some offices may hold out-of-state checks, checks for large amounts, or checks on cases where there has been a history of non-sufficient funds checks, to allow those checks to clear. Do not send cash through the mail.
Statutory Service Fees
Michigan law requires the Friend of the Court charge the payor of support a fee on all child support orders to partially offset administrative costs. The current fee is $39.00 per year.
Surcharge on Overdue Support
Public Act 141 of 1995 requires the Friend of the Court to levy an annual surcharge of 8% on all support payments that are past due as of January 1 and July 1 each year.
This law, effective January 1, 1996, means that every January 1 and July 1 the Friend of the Court office will add a surcharge equal to one-half of 8% to all support arrearage amounts. For example, if there is an arrearage of $1000 on January 1, a surcharge equal to one-half of 8%, or about $40, would be added to the arrearage amount due. This surcharge is added to all past due support, except for support ordered under the paternity act for the time period before the date of the original order.
Any surcharge collected for support due the custodial parent will be paid to that parent. Any amounts due the State of Michigan, for the period of time the child(ren) and custodial parent receive TANF or FIP benefits, will incur a surcharge payable to the State.
Automatic Support Enforcement
The Friend of the Court is required to begin enforcement action when past due support reaches an amount equal to one month of support. This may be done without waiting for a complaint or request for enforcement.
Enforcement of Support
The Friend of the Court has many options available to collect support. They include:
Immediate Income Withholding
Income withholding directs the payor's employer or other source of income to withhold support and send it to the Friend of the Court.
Support orders entered or changed after December 31, 1990, must include a provision for immediate income withholding.
In some limited cases, an order of income withholding will not take effect immediately, if the court finds that "good cause" exists based upon the following:
- A written specific finding by the court that income withholding would not be in the best interests of the child(ren).
- Proof of timely payment of previously ordered support, if applicable.
- An agreement that the payor will keep the Friend of the Court informed of his/her name, address and current source of income and specific information on any health care coverage available to him/her through employment, or that is being maintained.
- The parties enter into a written agreement that is approved by the court and provides that the order of income withholding will not take effect immediately, that an alternative payment arrangement has been made, and the payor shall keep the Friend of the Court informed of his/her name, address and current source of income and specific information on any health care coverage available to him/her through employment, or that is being maintained.
If a payor lives or moves out of state and gets behind in support payments, the Friend of the Court may begin interstate income withholding.
Contempt of Court (Show Cause) Hearing
If support is not paid on time, the Friend of the Court or a party may begin a contempt action (known as a "show cause" hearing), by filing papers requiring the payor to appear in court.
If the court finds the payor in contempt, the court may require a payment toward child support or commit the payor to jail. If it appears to the court that the payor may be confined to jail, the court is required to appoint an attorney for payors who cannot afford private counsel.
If a payor does not appear for a "show cause" hearing, the judge may issue a bench warrant for the payor's arrest, so that (s)he may be brought before the court. Effective January 1, 1997, in most cases the court should order the payor to pay costs associated with the issuance of the bench warrant, including those of the arrest and further proceedings.
Once a bench warrant is issued, the duty to arrest usually lies with local law enforcement agencies. A bench warrant issued for failure to appear for a contempt of court hearing is only valid within the State of Michigan.
Income Tax Intercept
If support is overdue, the Friend of the Court must request an income tax intercept for cases that qualify under the Federal IV-D program.
In such cases, a tax refund due the payor of support is sent to the Friend of the Court and applied to past due support for minor children. If there is any child support due a state, a federal income tax intercept must first be applied to this unpaid amount.
For payors with an arrearage of three or more months of support, the Friend of the Court may initiate action to have occupational, sporting, or drivers' licenses suspended. A payor can avoid a license suspension by showing that there is a mistake regarding the amount of the arrearage or by entering into an agreement accepted by the court for the payment of the arrearage.
In a format acceptable to the Family Independence Agency and the consumer reporting agency, the Friend of the Court must report to a consumer reporting agency the arrearage amount for each payor with two or more months of support arrearage. Lenders will often obtain a credit report from a consumer reporting agency when deciding whether to extend credit. If the credit report shows a history of untimely support payments or a large arrearage, the report may result in a denial of a loan or other credit.
The Friend of the Court may also make support information available to a consumer reporting agency if requested by the support payor.
A lien is a claim against real or personal property. Once a person holding property is informed of the lien, that person must not allow the property to be transferred until the lien is released.
As of August 1998, Michigan law provides that a lien in the amount of past due support exists against the support obligor's real and personal property.
A cash bond is a payment of a specific amount of money to guarantee future support payments will be made. In some cases where there has been a pattern of non-payment and the payor has a large asset, the Friend of the Court may be able to obtain a cash bond.
If a support arrearage has accrued and there is reason to believe the payor transferred title or ownership of real or personal property without fair consideration, the Friend of the Court may obtain a settlement requiring payment of the arrearage or initiate proceedings to have the transfer set aside.
The Friend of the Court will review child support orders once every 24 months. This review is automatic in public assistance cases, and upon written request in non-public assistance cases.
NOTICE PURSUANT TO MCL 552.517b(1); MSA 25.176(17b)(1).
If you are a party to a domestic relations action and a final judgment has been entered, you have the right to request a review of child support or health insurance by contacting the Friend of the Court, in writing, and requesting a review. Within 15 days of the date the office receives your request, it will determine if your case is due for a review. The Friend of the Court is not required to investigate more than 1 request received from a party each 24 months.
Within 180 days after determining a review is required, the Friend of the Court will send notice, conduct a review, and obtain a modification of the order, if appropriate.
If the Friend of the Court office determines that no change in the order is warranted, then within 30 days of this determination, it shall advise the parties. If either party objects, the Friend of the Court will schedule a hearing before the court on this objection.
Threshold for Modification
A "minimum threshold" establishes when a child support order should be changed. This threshold is the lesser of 10% or $5.00 per week. If the difference between the current support amount and the proposed support amount is 10% or $5.00, whichever is less, the Friend of the Court will petition the court for a change. If the difference between the current amount and the proposed amount is less than the minimum threshold, the Friend of the Court is not required to petition for a change.
The Friend of the Court, or either party, may still file a petition for a change in the support order, even if the minimum threshold is not met.
Support Modification Actions Started by Parties
A party may file his/her own motion for a change in his/her support order. This is known as an In Pro Per, or Pro Se, support modification. The office of the Friend of the Court will provide forms and instructions to any party who wishes to file a motion without the benefit of an attorney.
A party may also contact an attorney to file a motion requesting a change in the amount of support.
If both parents agree (stipulate) to change the support order to the amount shown by the child support formula, they may sign an agreement (stipulation). Once that agreement is put in the form of an order, signed by the judge, and filed with the county clerk, it will become an order of the court.
Non-Retroactive Modification of Support
Michigan law seldom allows for retroactive modification of child support. This means that once child support is ordered, it generally cannot be changed once it is due and payable.
If your financial situation changes, you should immediately file a motion for a change in the support amount. The court may adjust the support amount back to the date that the motion was filed. Simply notifying the Friend of the Court of a change in either party's financial situation does not change the court order.
Effective January 1, 1997, Michigan law created an important exception to the rule that support cannot be retroactively modified. The court now may modify support retroactively where a party knowingly and intentionally fails to report, refuses to report, or knowingly misrepresents income that was required by the court to be reported to the Friend of the Court.
How do I get an order for child support?
A petition asking the court to order child support must be filed with the court clerk. If both parties agree to establish support at the amount shown by the formula, they may sign an agreement (stipulation). Once that agreement is put in the form of an order, signed by the judge and filed with the court clerk, it will become an order of support.
Do I need an attorney to get an order for support?
You are not required to have an attorney to file a petition for support. An attorney may be helpful when filing papers and following specific rules.
Do the Friend of the Court and the judge have to use the child support formula?
Yes. A different amount may be used if the Friend of the Court or the judge state the amount required by the formula and a clear reason in writing or on the record why using the formula is "unjust or inappropriate."
If I have been paying my child support and the custodial parent is not allowing parenting time, do I have to keep paying support?
Yes. Parenting time and support are separate parts of a court order, with separate enforcement actions (See Parenting Time Enforcement section).
The other parent is not paying support as ordered. What can I do?
Contact the Friend of the Court for enforcement if overdue support equals the amount due for one month. You may also contact an attorney to start enforcement action.
My court order states I am to pay support through the Friend of the Court. Can I pay the other parent directly?
No, not without a change in your court order and having that order filed with a court clerk. If you fail to do so you might not receive credit for the payment.
If I am receiving public assistance (TANF or HP), do I still get child support?
No. The Friend of the Court must send to the State any child support payments made while you are on public assistance.
If payments are made, you qualify to receive the first $50.00 per month, plus any child support amount paid which is over and above the amount of your public assistance grant. This money is processed through, and paid by, the Michigan Family Independence Agency.
If you have questions regarding this program, contact your Family Independence Agency support specialist.
Is the Friend of the Court responsible for making sure that child support money is being spent on the children?
No. The law does not give anyone the authority to verify how child support payments are being spent.
Kalkaska County Courts