"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.
Editor’s note: Legislative activity and published opinion summaries have been published here with permission from the Michigan Judicial Institute’s “IMPACT” publication.
CHILD SUPPORT – HEALTH CARE COVERAGE
Effective June 20, 2019, 2019 PA 26 amended the Support and Parenting Time Enforcement Act, MCL 552.601 et seq., to do the following:
Editor’s note: Legislative activity and published opinion summaries have been published here with permission from the Michigan Judicial Institute’s “IMPACT” publication.
LEGISLATIVE ACTIVITY
Effective June 20, 2019, 2019 PA 26 amended the Support and Parenting Time Enforcement Act, MCL 552.601 et seq., to do the following:
- Provide that if a child support order is entered, the court must require that one or both parents obtain or maintain health care coverage that is accessible to the child and is available to the parent at a reasonable cost, for the benefit of the minor children of the parties and, subject to MCL 552.605b, for the benefit of the parties’ children who are not minor children, MCL 552.605a(2);
- Require the court to utilize guidelines as provided for in the child support formula developed by the Friend of the Court Bureau (FOCB) under MCL 552.519, to determine health care coverage that is accessible to the child and available at a reasonable cost, MCL 552.605a(2);
- Provide that the court must not require both parents to provide health care coverage under MCL 552.605a unless the parents already provide coverage or both parents agree to provide coverage, MCL 552.605a(2);
- Provide that MCL 552.605a does not prevent the court from exercising its discretion to order health care coverage based on the child’s needs and the parents’ resources, MCL 552.605a(2);
- Provide that, for a Friend of the Court (FOC) case, if a parent is ordered to pay support or obtain or maintain health care coverage through an employer, or both, the FOC office will, when appropriate and within two business days after a new hire report is entered into the state directory of new hires, or a payer’s or parent’s employer is otherwise identified, provide the new employer with a notice of income withholding or a notice of the order for dependent health care coverage, or both, on behalf of the parent who is subject to income withholding or a parent or payer who is required to provide dependent health care coverage, MCL 552.626(1);
- Provide that if the order for dependent health care coverage does not specify whether the health care coverage must be private health care coverage or public health care coverage, the FOC office must, when appropriate, provide an employer with the notice specified in MCL 552.626(1) unless one of the following applies:
- The parent or payer who is required to obtain health care coverage provides proof that health care coverage available through the employer is not accessible to the child or not available at a reasonable cost—health care coverage is presumed to be accessible to the child and available at a reasonable cost if it meets the guidelines provided in the child support formula developed by the FOCB under MCL 552.519, MCL 552.626(2)(a);
- The parent or payer who is required to provide health care coverage has obtained and maintained health care coverage that is accessible to the child and available to the parent at a reasonable cost, MCL 552.626(2)(b); and
- Provide that a notice of noncompliance sent to a parent must state that if the order for dependent health care coverage does not specify whether that coverage must be private health care coverage or public health care coverage, that the parent can obtain or maintain private health care coverage or public health care coverage—to the extent possible the notice must provide contact information available to the public for local, state, or federal agencies that administer public health care coverage. MCL 552.626(4)(b)(iii).
Effective June 20, 2019, 2019 PA 27 amended the Friend of the Court Act, MCL 552.501 et seq., to, among other things:
- Provide that, after a final judgment containing a child support order has been entered in a FOC case, the FOC office must use a procedure provided in MCL 552.517b to periodically review the order at the initiative of the FOC office, if there are reasonable grounds to believe that the amount of child support awarded in the judgment should be modified or that dependent health care coverage should be modified, or both, MCL 552.517(1)(f);
- Provide that reasonable grounds to review an order under MCL 552.517(1)(f) include probable access by a parent to dependent health care coverage that is accessible to the child and available at a reasonable cost—health care coverage is presumed accessible to the child and presumed available at a reasonable cost if it meets the guidelines provided in the child support formula, MCL 552.517(1)(f)(iii);
- Provide that reasonable grounds to review an order under MCL 552.517(1)(f) include changed dependent health care coverage cost from the amount used in the prior child support order, MCL 552.517(1)(f)(iv);
- Provide that if a support order lacks provisions for health care coverage, the FOC office must petition the court for a modification to require that one or both parents obtain or maintain health care coverage for the benefit of each child who is subject to the support order when health care coverage is accessible to the child and available at a reasonable cost, MCL 552.517(8);
- Provide that the FOC office must use the guidelines provided for in the child support formula developed by the FOCB under MCL 552.519 to recommend which parent provides health care coverage that is accessible to the child and available at a reasonable cost, MCL 552.517(8);
- Provide that the FOC office must not petition the court to require both parents to provide health care coverage under MCL 552.517 unless both parents already provide coverage or both agree to provide coverage, MCL 552.517(8);
- Provide that MCL 552.517 does not prevent the court from exercising its discretion to order health care coverage based on the child’s needs or the parent’s resources, MCL 552.517(8); and
- Require the child support formula developed by the FOCB to include guidelines for determining which parent is required to maintain health care coverage for the child and include a presumption for determining the reasonable cost and accessibility of health care coverage. MCL 552.519(3)(a)(vi).
MICHIGAN COURT RULE CHANGES
ADM File No. 2018-13, July 24, 2019, Addition of Rule 3.224 Friend of the Court Alternative Dispute Resolution, effective January 1, 2020
The Friend of the Court Alternative Dispute Resolution (FOC ADR) court rule establishes requirements that must be included in each FOC ADR plan that must be approved by the chief judge and the State Court Administrative Office. This new rule makes more uniform the ADR processes used by Friend of the Court offices. The rule provides for three FOC ADR processes: facilitative and information-gathering conferences, mediation (required by statute), and joint meetings.
MICHIGAN SUPREME COURT DECISIONS
The Michigan Supreme Court reversed In re MGR, 323 Mich App 279 (2018), in which the Court of Appeals “held that petitioners’ appeal was moot because of an order of filiation in a related paternity case,” and held that where a petition for adoption was filed when the minor child was four days old, and the respondent-father filed a paternity action over one month later, “[t]he trial court had the authority to stay the paternity action in favor of the adoption proceedings: absent good cause, adoption proceedings should be given priority,” and “a trial court has the inherent authority to control the progress of a case.” In re MGR, ___ Mich ___, ___ (2019). “Because petitioners had a right to appeal the [MCL 710.39] determination and because good cause to delay those proceedings had not been alleged, the trial court should have stayed the paternity proceedings pursuant to MCR 7.209(E)(2)(b) so that the appellate court could review that decision”—“[t]he order of filiation was therefore erroneously entered . . . and is vacated in [the related paternity case].” In re MGR, ___ Mich at ___. Additionally, “the order of filiation did not moot appellate review of the trial court’s [MCL 710.39] decision,” and the Michigan Supreme Court vacated the trial court’s “determination that the putative father was a ‘do something’ father under [MCL 710.39(2)]” because “[t]he facts did not establish that respondent-father provided substantial and regular support or care either to the birth mother during her pregnancy or to the birth mother or the child after the child’s birth during the relevant 90-day period”; rather, “[r]espondent-father’s support was insubstantial and irregular.” In re MGR, ___ Mich at ___.
MICHIGAN COURT OF APPEALS DECISIONS
PUBLISHED AND UNPUBLISHED SEE: http://courts.mi.gov/courts/coa/opinions/pages/zipfiles.aspx
PUBLISHED OPINIONS
Safdar v Aziz, published opinion of the Court of Appeals, released March 7, 2019 (Docket 344030).
PARENTING TIME – COUNTRY NOT PARTY TO HAGUE CONVENTION
“Under state law, MCL 722.27a(10), a trial court cannot enter a parenting time order allowing for the exercise of parenting time in a country that is not a ‘party’ to the Hague Convention on the Civil Aspects of International Child Abduction (Convention)”; “[b]ecause the United States has not accepted Pakistan’s accession to the Convention, Pakistan is not a ‘party’ to the Convention for purposes of MCL 722.27a(10).” Safdar v Aziz, ___ Mich App ___, ___ (2019). More specifically, “[t]he protective procedures and rules of the Convention are not binding between the United States and Pakistan, and as a result, Pakistan is not a ‘party’ to the Convention as contemplated by MCL 722.27a(10)”; “[t]herefore, the prohibitions of that statute remain applicable,” and “the trial court properly denied the [defendant’s] motion to change [the minor child’s] domicile” to Pakistan. Safdar, ___ Mich App at ___.
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.
Boyd v Friskey, unpublished opinion of the Court of Appeals, released February 28, 2019 (Docket No. 341660). Plaintiff’s complaint under the Revocation of Paternity Act was defective because it named only the mother and failed to join the legal father, because it was filed late, and because he failed to file an affidavit at the time he filed his request for an extension of time to file his complaint.
Donakowski v Reddie, unpublished opinion of the Court of Appeals, released March 19, 2019 (Docket No. 344637). Although the trial court erred by not determining whether the mother’s request for change of domicile disturbed the child’s established custodial environment and weighing the child custody factors in deciding whether to approve the change in domicile, it could still determine the change in domicile alone was an insufficient change in circumstances to consider the father’s motion to change custody.
Scott Jr v Nabuufu, unpublished opinion of the Court of Appeals, released March 21, 2019 (Docket No. 345382). The trial court properly concluded that it did not have jurisdiction over the plaintiff’s custody complaint under the UCCJEA because the complaint was filed 12 days before the child would have met the six consecutive months residency requirement under MCL 722.1102(e) and because the parties and child did not have sufficient ties to Michigan.
Palmer v Anaya, unpublished opinion of the Court of Appeals, released March 26, 2019 (Docket No. 345368). The trial court erred when it found an established custodial environment existed with both parties, proceeded with defendant’s motion to change custody, but applied the less demanding preponderance-of-the-evidence standard to its evaluation of the best interest factors rather than the clear-and-convincing evidence standard.
Kehoe v Camilleri, unpublished opinion of the Court of Appeals, released March 26, 2019 (Docket No. 345432). When the custody order was only six weeks old and the mother failed to provide proper cause or a change of circumstance to warrant a change in custody, the trial court had no cause to revisit custody or to consider the best interest factors under MCL 722.23.
Fuchs v Fuchs, unpublished opinion of the Court of Appeals, released March 26, 2019 (Docket No. 343335). When a parent has taken alienating actions against the other parent, these actions may be relevant in a best interests determination under factors MCL 722.23(a) “the love, affection, and other emotional ties,” (b) “the capacity and disposition of the parties to give the child love, affection and guidance,” and (j) “the willingness and ability… to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.”
Green v Steinacker, unpublished opinion of the Court of Appeals, released March 28, 2019 (Docket No. 345089). When evaluating defendant’s change of domicile petition, the trial court was not required to articulate findings for each best interest factor because implicit in the court’s acceptance of the parties’ agreement to approve the change of domicile was that the move is in the child’s best interests, and the court need only take steps to satisfy itself the agreement is in the child’s best interests.
Grayer v Grayer III, unpublished opinion of the Court of Appeals, released April 11, 2019 (Docket No. 345322). In deciding the motion for change of domicile, the trial court erred by denying the motion because the non-moving party could not maintain her current parenting time schedule rather than considering whether the proposed schedule would provide her a realistic opportunity to maintain her relationships with the children.
Bogue v Swinson, unpublished opinion of the Court of Appeals, released April 16, 2019 (Docket No. 346301). The trial court did not abuse its discretion in denying defendant’s motion to change custody when the plaintiff’s decision to abruptly quit her job and move to another city provided cause to revisit the custody determination, but her situation had stabilized by the time of the trial court’s decision and defendant did not dispute the plaintiff’s testimony that the child is “thriving” in her new environment.
Sloan v Sala, unpublished opinion of the Court of Appeals, released April 18, 2019 (Docket No. 345275). Although the parties stipulated to joint legal custody, the trial court committed clear legal error in failing to address whether there was an established custodial environment and in failing to conduct best-interests analyses regarding physical custody and parenting time.
Sturos v Sturos, unpublished opinion of the Court of Appeals, released April 23, 2019 (Docket No. 344449). The trial court did not err by finding that joint legal custody was not practical in this case when it based its decision on the parties’ mutual animosity, including testimony that each of them had called the police on the other, as well as their inability to collaborate on medical decisions, discipline, and religious practice.
Urka v Urka, unpublished opinion of the Court of Appeals, released April 23, 2019 (Docket No. 343302). When defendant declined to draw a paycheck or accept a monthly “allowance” from his family’s farm, but the farm paid all of his major living expenses, it was appropriate to impute a full-time farm manager income of $66,000, based upon the Bureau of Labor Statistics Occupational Handbook.
Wagner v Rebbie Jr., unpublished opinion of the Court of Appeals, released April 30, 2019 (Docket No. 346754). A change in the child’s school – absent evidence of inferior quality of the school or of a change in the child’s performance, along with changes to times of medical appointments, do not amount to proper cause or change in circumstances warranting a change in legal custody.
Cheyne v Lemon, Jr., unpublished opinion of the Court of Appeals, released May 2, 2019 (Docket No. 345501). Plaintiff’s move to another county, change of employment and home environment, along with defendant’s motorcycle accident that left him unable to work, remarriage, and living environment including his new wife, his son, and his wife’s siblings, as well as the child beginning school and the prior order making regular school attendance infeasible constituted a change in circumstances to consider a change in custody.
Jackson v Appling II, unpublished opinion of the Court of Appeals, released May 7, 2019 (Docket No. 345488). The trial court is not required to create a “service plan” to facilitate a mentally ill parent’s parenting time.
Davis v Davis, unpublished opinion of the Court of Appeals, released May 7, 2019 (Docket No. 346829). The trial court’s order continuing the parties’ parenting time schedule of three overnights and one midweek period with plaintiff did not alter the established custodial environment because it did not change to whom the children looked for guidance, discipline, the necessities of life, and parental comfort.
Kolar v Flikkie, unpublished opinion of the Court of Appeals, released May 9, 2019 (Docket No. 346281). The trial court appropriately concluded that one parent unilaterally making decisions does not justify an award of sole legal custody, and the circumstances of this case supported the trial court’s decision to maintain joint legal custody because it allows both parties to advocate for the child’s best interests, even if they do not always agree.
Taylor v Taylor, Jr., unpublished opinion of the Court of Appeals, released May 9, 2019 (Docket No. 346299). The trial court erred when it found the child’s best interests were served by refusing to set aside the legal father’s paternity when the only link between him and the child was financial.
Franzel v Franzel, unpublished opinion of the Court of Appeals, released May 16, 2019 (Docket No. 344648). The trial court erred in its best interests analysis when it stated that the potential for domestic violence was over because the parties were separated and awarded the parties joint physical custody and equal parenting time without considering the effect of the prior and potential continued effect of the domestic violence on the children.
Eberbach II v Massey, unpublished opinion of the Court of Appeals, released May 21, 2019 (Docket No. 346025). It is not necessary to find proper cause or change in circumstance or to consider whether a parenting time schedule would modify the established custodial environment if the court is merely reaffirming the parenting time arrangements of an existing order.
Shannon v Ralston, unpublished opinion of the Court of Appeals, released May 23, 2019 (Docket Nos. 339944, 343213, 343886, 344356, 344418, and 346344). Per the parties’ agreement, moving the child out of state required the other parent’s consent or court order, regardless of the fact that the move brought the child closer to defendant in terms of physical distance.
Eubanks v Hendrix, unpublished opinion of the Court of Appeals, released May 23, 2019 (Docket No. 344102). In accordance with 2017 MCSF 2.01(E)(4)(e)(vii), when defendant testified to personal use of his business vehicle 17 percent of the time, the trial court should not have excluded the entire expense from his income when calculating support.
Cleary v Khalid, unpublished opinion of the Court of Appeals, released May 28, 2019 (Docket No. 345719). Where defendant had already relocated out of state and left the child in plaintiff’s custody and the proposed parenting time under defendant’s motion to relocate would have modified the child’s established custodial environment, the trial court was required to examine the best-interest factors in connection with this alteration in the established custodial environment under both defendant’s motion for change of domicile and plaintiff’s motion for change of custody.
Woods v Woods, unpublished opinion of the Court of Appeals, released June 4, 2019 (Docket No. 341204). When there was an established custodial environment with both parents, the court did not need to award equal parenting time as there was no evidence the court-ordered parenting time schedule of 197 days with plaintiff and 168 days with defendant would change whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort.
FRIEND OF THE COURT BUREAU MEMORANDA
(July 11, 2019) Family Division Case Inventory Form
In preparation for e-Filing and electronic records, the Michigan Supreme Court adopted changes effective September 1, 2018, that updated and consolidated many court rules. Updates to MCR 3.206(A)(3), in conjunction with updates to MCR 1.109, require persons filing a case initiating document in a domestic relations proceeding to attach a case inventory. The purpose of this memorandum is to provide guidance regarding which cases should be included on the case inventory.
MICHIGAN IV-D MEMORANDUMS (OFFICE OF CHILD SUPPORT)
2019-013 (July 31, 2019) Professional License Data Update
This IV-D Memorandum announces the continued migration of professional license data to the Michigan Professional Licensing User System (MiPLUS), which is the new licensing system for the Department of Licensing and Regulatory Affairs (LARA). This IV-D Memorandum describes the impact of the migration to IV-D workers. It also explains how to look up new and updated license data that is no longer available on the Michigan Child Support Enforcement System (MiCSES) and Business Objects reports.
Additionally, this IV-D Memorandum notifies IV-D workers about duplicate license data in MiCSES and provides a resource for determining which license information is the most current.
2019-012 (July 10, 2019) IV-D Confidentiality, Family Violence, and the Case Inventory Addendum
This IV-D Memorandum states how IV-D confidentiality and family violence rules apply to the use of IV-D information when IV-D staff complete the Case Inventory Addendum (MC21) in IV-D domestic relations cases.
2019-011 (June 24, 2019) Updates to the Notice Regarding Electronic Payments (FEN805)
OCS announces minor updates to the Notice Regarding Electronic Payments (FEN805). The updated FEN805 will be implemented in the Michigan Child Support Enforcement System (MiCSES) with the 10.1.1 Release on June 28, 2019.
2019-010 (June 10, 2019) Introduction of Michigan IV-D Child Support Manual Section 6.39, “Civil Contempt (Show Cause),” and Improvement to the Civil Contempt (Show Cause) Processes
*ACTION DUE: Define County Form Options on June 17, 2019
This IV-D Memorandum introduces Section 6.39, “Civil Contempt (Show Cause),” of the Michigan IV-D Child Support Manual. Section 6.39 incorporates policy from the recently published IV-D Memorandum 2019-006, Federal Regulations Regarding Civil Contempt (Show Cause), as well as new policy. It provides guidance about civil contempt as an enforcement remedy for non-compliant non-custodial parents (NCPs).
With the Michigan Child Support Enforcement System (MiCSES) 10.1 Release (June 14, 2019), OCS will implement system support for screening cases through the new Civil Contempt Ability to Pay Screening (CAPS) screen. IV-D staff will use the CAPS screen to screen a case when contemplating a civil contempt action. In addition, OCS will implement the new Ability to Pay Worksheet (FEN14X and FEN14Y) to help IV-D staff gather information from NCPs about their ability to pay support.
With the publication of this policy, IV-D Memorandums 2019-006 and 2010-003 are obsolete.
2019-009 (May 31, 2019) OCS Forms with Updated Michigan Department of Health and Human Services (MDHHS) Letterhead and Modified Formatting for Customers with Disabilities
This IV-D Memorandum announces OCS’s revision of 14 non-MiCSES-generated forms that contain MDHHS letterhead. On 12 of these forms, OCS has updated the letterhead to reflect the new Michigan governor and the new MDHHS director, who began their terms in January 2019. On two of the forms, OCS has removed the MDHHS letterhead. In addition, OCS has updated all of these forms to meet usability standards for people with disabilities.
2019-008 (May 6, 2019) Data Warehouse Self-Service Reporting (SSR), Statewide Implementation, and Training
This IV-D Memorandum provides information regarding Self-Service Reporting (SSR) in Business Objects. It provides a background of the project, its development process, training considerations, and implementation procedures. Statewide SSR implementation for FOC users was scheduled to begin on May 16, 2019, and continue through September 2019. As SSR implementation progresses, OCS will assess new users’ needs and will be in a better position to determine use of SSR for PA and OCS staff, and for more expansive data topics going forward. Use of SSR is optional; OCS does not require users or offices to access SSR.
