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| Steve Capps speaking to the Friend of the Court Association on July 24, 2019. |
As the institution of the friend of the court reaches 100
years old in 2019, we wear that age as wisdom, not weariness. And although we
call the joint efforts of friends of the court, prosecuting attorneys, the
Office of Child Support, and the State Court Administrative Office collectively
“the child support program,” focusing on child support alone misses the point
that local child support professionals administer a wider range of services to
families. Unlike other states, in Michigan, child support is one part of a more
comprehensive and innovative structure.
Where did Michigan’s child support system come
from?
Our legal system descended from the English legal
system. From its earliest days, that
system had always been called upon to protect individual rights. It started by appeals to a chancellor and
grew into a system called Chancery. Its
judges were charged with doing what was fair.
Over time, the courts of chancery expanded to protect the most
vulnerable citizens – the mentally ill and children, among others. Chancery courts could dissolve a marriage,
impose support obligations, establish parentage, and create estates to protect
children. When all the rest of their
world was dissolving around them, families could count on the Chancery court
for protection. That system eventually
merged into Michigan’s One Court of Justice that we have today.
Some important changes to Michigan’s family court system were
triggered around 1917 to 1919, which were watershed years for America. In 1917, America entered World War I, also
known as the Great War and “the war to end all wars.” The 4.7 million men and women deployed were
changed by the experience, as were the women and older children who took their
places in the workforce. After the war
ended and the troops returned in 1919, divorces and out-of-wedlock births
increased. The following year in 1920,
the Nineteenth Amendment granted
women the right to vote, and women’s economic roles continued to increase.
In 1917, at the beginning of the watershed moment, if a person failed to follow a court order concerning a child or spouse, the other party could file a motion for an order to show cause to enforce the order through the court’s contempt power. However, a poor woman seeking support could rarely afford to hire an attorney, and attorneys who were willing to take such a case were scarce. As a result, many vulnerable families could not invoke the court’s authority to enforce domestic obligations.
To address these issues of access to justice, judges in Wayne
County decided in 1917 to appoint a special prosecutor – a friend of
the court - who would bring to the court’s attention a person’s
failure to obey its decrees and to bring other actions to see that Wayne county
children were properly cared for. They appointed
Edward Pokorny to that position effective January 7, 1918.
The experiment was a success.
So much so that in 1919, the Michigan Legislature passed the Friend of
the Court Act - legislation establishing a friend of the court in every county
to ensure the welfare of children and ensure they were being cared for and
supported.
Originally, the friend of the court appointment was recommended
by the judge and made by the prosecutor.
In the 1930s that changed to the governor appointing the friend of the
court and again in 1983 to the chief judge making the appointment.
There have been other changes throughout the years, but one
thing has remained the same. Helping and
protecting families has been a collaborative effort of the executive branch and
the judicial branch and locally between courts and prosecutors.
Michigan is consistently a step ahead
Although only the friend of the court is celebrating 100
years, it is really all of us working in Michigan’s child support program who
celebrate. Throughout those 100 years,
what each of us do has been embodied in the friend of the court office and Act
that created it, and we in Michigan continue to be leaders and innovators.
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| Timeline highlighting major changes in Michigan's child support program. |
By 1939, the legislature called on the friend of the court to have an annual conference to consider legislation and policy to improve conditions for families.
Then in 1950 – over 30 years after the friend of the court
was established – the federal government began to get involved. It required an office of child support in
every state to share information to help establish paternity between the
states. Over the next 17 years, almost
50 years after Michigan, it would expand its role to help collect support for
children who were receiving public assistance and not living with two parents.
It was not until 1975 – over 55 years after Michigan first
took the lead - that the federal government established the federal Title IV-D
child support program. It was designed
to reimburse the costs of public assistance and focused on those who received
public assistance. Even today, although
the program is available to all families, some states serve primarily families
who are on public assistance. But not
Michigan; from 1919, we serve all families.
The Michigan program was designed for families. The legislature enacted laws calling on the
prosecutor to represent persons to establish paternity and support. In 1982, it passed a revised Friend of the Court
Act and the new Support and Parenting Time Enforcement Act. They created new powers to help and protect
families.
In 1984 – 65 years after Michigan began serving all families – the federal government required and first funded
equal services to all families, whether or not they received public assistance.
In 1984, the federal government required states to establish
child support guidelines. Michigan
responded not by developing a simple percentage of income formula like many
states, but by developing the most comprehensive guidelines in the country. Today other states look to our guideline as
they try to better compensate for the costs of parenting time and health
care. When the federal government
promulgated its latest regulation in 2016 requiring state guidelines to have
changes to be more fair to poor and low income earners, we did not have to
change a thing; we had been covering those bases for years. When the regulation was proposed in 2014, it
talked about incorporating parenting time into orders – 95 years after Michigan
first started enforcing it!
In 1988, the federal government required income
withholding. Michigan had been doing it
for years.
In the early 1990s Michigan had embarked on a new program to
help persons receiving public assistance by providing childcare and helping
them become employed. As a result, the number
of people receiving public assistance in Michigan plummeted, and money that had
previously gone to the state and federal government to reimburse public
assistance went to families instead.
Because federal incentives were based on collections of public
assistance, Michigan received fewer incentives as its families increased their
independence.
In 1996, the federal government passed its last major child
support legislation called Personal Responsibility and Work Opportunity
Reconciliation Act. The legislation,
once again, incorporated reforms Michigan had already adopted. Now it rewarded states not just for
collecting support for public assistance cases, but also for collecting support
for families who were formerly on public assistance to help them stay
self-sufficient and off assistance.
During the last 23 years, we haven’t rested on our
laurels. We created a process for
discharging unpayable arrears - years before the federal government decided it
was a good idea. We adopted the most
comprehensive statute to revoke paternity.
We became the first state in the country to create a uniform support
order and one of the first to rely on genetics to conclusively establish
paternity. We have sought and achieved
legislation to expand parenting time and parenting time enforcement,
legislation to expand liens, legislation to refer persons to work programs, and
legislation to create specialty courts.
Friend of the court plays a critical role for families
Families can be fragile in the best of circumstances. Children without a legal father may have
little access to their father and no support from him. Children born out of wedlock with a legal father may have little to no stable
environment. Children of divorced
parents may suffer a severe impact if their parents’ breakup is bitter and
suddenly creates an absent parent where formerly there were two parents. Families in separation struggle economically
and emotionally. They try to navigate
what can seem like an ocean of troubles during a storm.
When troubles become too great, the friend of the court is
like a life raft, floating in an ocean of troubles severe enough to sink a
ship. The parents and children cling to
the raft for survival. The friend of the
court, like the life raft, is not perfect.
It still has to operate in the same turbulent waters that caused the
wreck in the first place, and it, too, is subject to the waves and violence
emanating from those troubled waters.
Expectations of families that they can successfully navigate the
situation are high, despite the evident turmoil, and the friend of the court is
subject to scorn and disillusionment if problems persists. Still the friend of the court is the life raft, and it is there for the family when all
others abandon them.
When Wayne County and then the legislature first created the
friend of the court, it was an act of grace to a disadvantaged population. They recognized that humans are entitled to
the opportunity to have dignity, no matter their station in life, and that the
court is uniquely situated to give them that opportunity. They recognized that the court could protect
the most vulnerable – the young, the poor, those devoid of representation. And
they recognized the need to be proactive to see that the court had the
knowledge to protect them. Thus, the
friend of the court was born of compassion, and today it lives by compassion.
From its humble beginnings as a monitor, today’s friend of
the court has grown to assume parts of a number of different functions. Its 2,000 employees across the state serve
the court and the public in a number of official and unofficial roles. In any given circuit, the friend of the court
employees might act as a lawyer, counselor, mediator, investigator, law
enforcement officer, accountant, banker, cheerleader, and coach. They are sounding boards, educators,
navigators… and yes, skeptics, critics, and probation officers. The friend of the court in all these roles
continues to help give dignity and support to Michigan’s families.
I am proud to call these dedicated friend of the court
employees my colleagues. Today, as for every
workday for the last 100 years, they went to work, and families’ lives were
better because they did.
I sincerely thank all friend of the court employees for their
service.
Steve Capps is director of the Friend of the Court Bureau. His staff is the primary source of management support for Michigan's friend of the court offices and family division courts and advises the Michigan Supreme Court and its staff regarding state and federal statutes and regulations that affect family law issues. Before coming to SCAO, Mr. Capps served as a friend of the court for Branch County and as a referee and a domestic relations mediator for the circuit courts in Calhoun and Branch counties. A past president of the Branch County Bar Association, he currently serves as a member of the program leadership group for Michigan's child support program.
