Legal Corner - March 2019

"The Legal Corner" provides a summary of recent Michigan Supreme Court and Michigan Court of Appeals decisions relevant to the child support program, as well as recently released state memoranda.

Michigan Court Rule Changes

Domestic Relations – Final Postjudgment Order

Effective January 1, 2019, ADM File No. 2017-20 amended MCR 7.202 to “clarif[y] what constitutes a final postjudgment order in a domestic relations case for purposes of appeal by right.” Staff Comment to ADM File No. 2017-20, issued September 20, 2018. Specifically, “final judgment” or “final order” “in a domestic relations action [means] a postjudgment order that, as to a minor, grants or denies a motion to change legal custody, physical custody, or domicile[.]” MCR 7.202(6)(a)(iii).

MICHIGAN COURT OF APPEALS DECISIONS

PUBLISHED AND UNPUBLISHED, SEE: http://courts.mi.gov/courts/coa/opinions/pages/zipfiles.aspx.

UNPUBLISHED OPINIONS

Under Michigan court rule, unpublished decisions are not considered authoritative. They are cited here to illustrate points of interest for future similar cases.

Adams v Adams II, unpublished opinion of the Court of Appeals, released December 6, 2018 (Docket No. 343170). The trial court erred when it relied upon a friend of the court report regarding the best-interests factors for a custody and parenting time decision without admitting that report as evidence at the trial or including it in the record.

Kubacki v Kubacki, unpublished opinion of the Court of Appeals, released December 11, 2018 (Docket No. 343526). A motion for additional parenting time that would not alter the established custodial environment only requires analysis under the Shade standard that the change is in the child’s best interests rather than the higher Vodvarka standard that there has been a significant change in circumstances.

Ainsworth v Dunkel, unpublished opinion of the Court of Appeals, released December 11, 2018 (Docket No. 344311). If a primary physical custodian begins residing in a different home from the child and absenting himself from primary caretaker duties, these changes may be relevant to several of the best interest factors and therefore meet the Vodvarka standard of proper cause to revisit custody.

Argel v Argel, unpublished opinion of the Court of Appeals, released December 20, 2018 (Docket No. 344836). Although plaintiff had shoplifted with the child in her care, defendant failed to present any evidence showing that the incident had such a detrimental effect on the child that changing the established custodial environment was supported by clear and convincing evidence.

Zalewski v Zalewski, unpublished opinion of the Court of Appeals, released January 15, 2019 (Docket No. 339809). When the parent who was not designated “primary custodian” by the last order begins exercising parenting time with the child 98 percent of the year and when both parents have experienced changes in income, revisiting both custody and child support is warranted.

Roydes v Roydes II, unpublished opinion of the Court of Appeals, released January 15, 2019 (Docket No. 343114). Change of circumstances and proper cause sufficient to revisit the best-interest factors regarding a change in custody were met when defendant quit his job and moved with the children to another state, then failed to adequately feed, supervise, and provide medical care for the children, it met both.

Moore v Moore, unpublished opinion of the Court of Appeals, released January 17, 2019 (Docket No. 342596). Because the prior parenting time order contained language regarding the parties modifying “their parenting time schedule, maintaining a 50/50 parenting time arrangement or an arrangement closely facilitating this equal parenting time structure,” changes made to the schedule did not require a showing of proper cause or change of circumstances.

Tacey v Tacey, unpublished opinion of the Court of Appeals, released January 24, 2019 (Docket No. 345081). The trial court erred when it determined that the 5 ½- and 7-year old children were of insufficient age to express a preference regarding custody without interviewing the children in order to determine whether they had the capacity to form a preference.

Norwood Jr v Norwood, unpublished opinion of the Court of Appeals, released January 29, 2019 (Docket No. 344707). When the mother had primary physical custody of the child and repeatedly and consistently interfered with father’s parenting time and emotionally manipulated the child in an attempt to alienate the child from father, it was proper cause to revisit custody of the child.

Kwek v Kwek, unpublished opinion of the Court of Appeals, released February 5, 2019 (Docket No. 343934). A party’s increased parenting time pursuant to the divorce judgment’s right of first refusal provision of the divorce judgment does not constitute a change in circumstances warranting a permanent modification of parenting time because the provision was working as intended and not a change in circumstances.

Robinson v Marculewicz, unpublished opinion of the Court of Appeals, released February 5, 2019 (Docket No. 344803). When a party objects to a referee’s recommendation, the court must also consider in the de novo hearing any new evidence not available at the time of the referee hearing.

Sadro v Roggenbuck, unpublished opinion of the Court of Appeals, released February 7, 2019 (Docket No. 343879). Parenting time reinstatement. The trial court properly ordered suspension of plaintiff’s parenting time without ordering reunification therapy until the child had undergone a trauma assessment because there was clear and convincing evidence supported by testimony from the child’s past and current counselors and expert witnesses that the child’s mental and emotional health would be endangered by any parenting time with plaintiff.

Peck v Peck, unpublished opinion of the Court of Appeals, released February 7, 2019 (Docket No. 344124). The trial court’s best interests findings in favor of sole legal and physical custody with plaintiff were not against the great weight of the evidence when defendant had a history of reckless and criminal activity with her children in her care, including an incident of kidnapping the children whose custody was in dispute, as well as untreated mental health issues and housing and income instability.

Bloom v Ogilvie, unpublished opinion of the Court of Appeals, released February 12, 2019 (Docket Nos. 342337; 342354). The trial court did not err in suspending defendant’s parenting time and denying his subsequent motion to restore his parenting time due to his lack of compliance with conditions recommended after a psychological evaluation which were intended to protect the children from physical, mental, or emotional damage.

Chudzinski v Finlayson and Bechtol, unpublished opinion of the Court of Appeals, released February 12, 2019 (Docket Nos. 343480; 345018). When defendant requested a change in parenting time to allow in-person visits with the child, the trial court correctly determined that such a change would not modify the established custodial environment because defendant is incarcerated and therefore unable to provide the child guidance, discipline, and the necessities of life.

Vanderhoff v Vanderhoff, unpublished opinion of the Court of Appeals, released February 12, 2019 (Docket No. 344839). The trial court appropriately denied the plaintiff’s request for change of domicile to Texas when the defendant would have difficulty maintaining a close relationship with the child if plaintiff moved the child from Michigan to Texas, there was a lack of evidence comparing the two school districts, plaintiff did not plan to seek employment in Texas, and there were no close family members for the child in Texas.

Friendof the Court Bureau Administrative Memoranda

2019-03 (March 12, 2019) Adjusting Current Support Due to Incapacitation

This memorandum replaces SCAO Administrative Memorandum 2018-01. SCAO reissued this policy because the original memorandum contained optional actions that a friend of the court office could take while the Program Leadership Group planned action to seek legislation to modify support of incarcerated parties as a matter of law to address new Title IV-D federal regulations. Initiating a review upon learning of incarceration (that will last longer than 180 days) is another option allowed by federal regulation and will allow Michigan to meet the deadline for satisfying the regulation while still seeking a more comprehensive solution.

This memorandum explains several requirements and recommends actions that courts and FOC staff should take regarding child support orders when parents may be incapacitated and unable to satisfy their child support obligations. Each FOC must also identify at least one Information Navigator and maintain that information through MiSupport’s Partner Contact page.

2019-01 (January 15, 2019) Friend of the Court Guidelines for Determining, Changing, or Suppressing Addresses of Parties and Nonparties

This administrative memorandum establishes guidelines to assist friend of the court (FOC) offices in determining which addresses to use to: (1) serve notices and pleadings on parties and nonparties; (2) change the address of a party or a nonparty, and; (3) suppress the address of a party. This applies both to addresses in an FOC’s file and to addresses stored in the Michigan Child Support Enforcement System (MiCSES).

The Michigan Supreme Court recently approved changes to MCR 3.203, “Service of Notice and Court Papers in Domestic Relations Cases.” The amendments now allow the friend of the court to use automated databases such as the United States Postal Service’s National Change of Address database to identify outdated addresses and update them to correct addresses. The amendments also allow a party or a party’s attorney to agree to receive notices and other court papers from the friend of the court electronically. The amendments move the requirement to provide notices to attorneys of record from MCR 3.208. This memorandum will help FOC offices understand and implement the court rule provisions and it replaces administrative memorandum 2004-15.

Michigan IV-D Memorandums (Office of Child Support)

2019-007 (March 25, 2019) Agency Placement Referrals for Relative Unlicensed Providers and Court Action Referrals (CARs) for Unlicensed Providers

This IV-D Memorandum announces that the Michigan Department of Health and Human Services (MDHHS) Child Welfare Program will be making foster care maintenance payments to relative unlicensed providers beginning April 1, 2019. This memorandum discusses: Agency placement funding for relative unlicensed providers; Michigan Statewide Automated Child Welfare Information System (MiSACWIS) referrals for children placed with relative unlicensed providers; FOC staff manual actions for working relative unlicensed provider agency placement IV-D cases; IV-D staff manual actions for working IV-D cases where the relative unlicensed provider is also the custodial party (CP) receiving cash assistance through the Family Independence Program (FIP) on behalf of a child; and policy regarding CARs on agency placement referrals that also have a separate FIP referral with no existing child support order. OCS will incorporate the policy from this IV-D Memorandum into pertinent sections of the Michigan IV-D Child Support Manual in a future publication.

2019-006 (March 18, 2019) Federal Regulations Regarding Civil Contempt (Show Cause)

This IV-D Memorandum introduces new policy about civil contempt as an enforcement remedy for non-compliant non-custodial parents (NCPs). This policy, which was prompted by revised federal regulations, is the first in a series of OCS policy publications intended to: provide guidance to IV-D staff on civil contempt processes; improve successful outcomes for the families that the Michigan Child Support Program serves; provide systematic tools that will assist IV-D staff in gathering information about the NCP’s ability to pay; and implement policy and procedures that will support the federal regulation.

In June 2019, OCS intends to publish Michigan IV-D Child Support Manual Section 6.39, “Show Cause.” This publication will correspond to the first phase of system support in the Michigan Child Support Enforcement System (MiCSES) 10.1 Release (June 14, 2019). OCS also intends to provide policy for additional phased-in system support in future releases.

These initiatives are a joint effort by OCS, the State Court Administrative Office (SCAO), the Enforcement Work Improvement Team, and the Civil Contempt Workgroup. The Program Leadership Group endorses these initiatives. The partners’ goals are to: build enhanced system support; improve the civil contempt process and the proceedings by making it easier for IV-D staff to identify and document NCPs who are most appropriate for show cause actions; and ensure the information needed by the court is available in advance of a hearing.

2019-005 (March 11, 2019) Updates to Michigan IV-D Child Support Manual Section 1.35, “MiChildSupport Portal” Regarding the MiCase Ask a Question Feature

OCS will modify this “MiChildSupport Portal” Ask a Question feature in MiCase to allow FOC and PA staff to initiate a question to a MiCase user. The updated Ask a Question feature will be implemented with the MiChildSupport release on March 20, 2019.

2019-004 (March 4, 2019) Review and Modification of Orders for Incarcerated Non-Custodial Parents (NCPs) and Updated Federal Guidelines for Order Establishment and Modification

This IV-D Memorandum announces policy required to comply with a federal regulation regarding the review and modification of child support orders for incarcerated NCPs. Effective March 11, 2019, IV-D workers will be required to initiate a full review within 44 days of the IV-D program learning that an NCP has been or will be incarcerated for more than 180 days. OCS has revised policy in Section 3.45, “Review and Modification,” of the Michigan IV-D Child Support Manual to include this requirement.

OCS created the policy in cooperation with the State Court Administrative Office (SCAO) and program partners. IV-D workers will follow the policy introduced in this memorandum and will also follow the guidance in SCAO Administrative Memorandum (ADM) 2019-03, Adjusting Current Support Due to Incapacitation on initiating reviews for NCPs who will be incarcerated for more than 180 days.

This IV-D Memorandum also introduces a new Business Objects report, the Review and Modification – Incarcerated NCPs Report (RV-200),6 which will be implemented with the Michigan Child Support Enforcement System (MiCSES) 10.0.3 Interim Release on March 8, 2019. OCS developed the RV-200 to assist IV-D workers in identifying NCPs who require a review. It includes incarceration dates, statuses, case information, and whether a review needs to be initiated or completed. OCS has incorporated information about this report into Section 3.45 of the Michigan IV-D Child Support Manual.

2019-003 (March 11, 2019) U.S. Bank ReliaCard Pre-Acquisition Disclosure and Fee Schedule

New federal regulations require the provision of comprehensive disclosure information to custodial parties (CPs) prior to acquiring the U.S. Bank ReliaCard prepaid debit card. Effective April 1, 2019, the Michigan IV-D program will: provide two separate disclosure documents to CPs at the same time; provide the disclosure documents before CPs acquire a U.S. Bank ReliaCard; and provide a statement that the CP does not have to accept the U.S. Bank ReliaCard and has options for receiving child support payments.

2019-002 (February 25, 2019) Behavioral Interventions in Child Support

This IV-D Memorandum provides information about the use of behavioral interventions in the child support program. It discusses the formation of the Michigan IV-D Behavioral Interventions Workgroup (BI Workgroup) and the group’s goals and objectives, as well as an update on the group’s latest activities. This memorandum is informational only and does not introduce any new statewide policy or procedure.

2019-001 (January 17, 2019) Contract Performance Standards (CPS) Training Measures Updates

This IV-D Memorandum provides updates to the Contract Performance Standards (CPS) Training Measures, including an outline of the criteria the OCS Training Services Section (Training Services) staff will use to determine which training opportunities will count toward fulfilling the CPS Training Measures.

Some information on the CPS Training Measures is already included in Section 1.25, “Contracts,” of the Michigan IV-D Child Support Manual. In the future, OCS will update Section 1.25 with the information from this memorandum, along with information about reports that will be available in the Learning Management System (LMS).

2018-017 (December 18, 2018) Updates to Michigan IV-D Child Support Manual Section 1.10, “Confidentiality/Security”

This IV-D Memorandum announces updates to Michigan IV-D Child Support Manual Section 1.10, “Confidentiality/Security” regarding the Confidentiality and Security Web-based Training. IV-D staff will access this training from the Learning Management System (LMS) rather than from a direct link on mi-support.

2018-016 (December 12, 2018) New Business Processes for Michigan Child Support Enforcement System (MiCSES) Help Desk Tickets Containing Federal Tax Information (FTI)

This IV-D Memorandum introduces new MiCSES Help Desk processes in response to an Internal Revenue Service (IRS) critical audit finding regarding the handling of FTI. It discusses business process changes for IV-D workers with Help Desk requests that contain FTI and Help Desk staff who receive tickets that contain FTI. OCS will update Section 1.10, “Confidentiality/Security,” of the Michigan IV-D Child Support Manual with this policy and other FTI-related policy resulting from the IRS audit findings in a future revision.