"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.
ADMINISTRATIVE ORDERS
The
Michigan Supreme Court and the State Court Administrative Office have
developed and are continually updating a COVID-19 response plan to assist the
state’s judiciary. The plan focuses on fulfilling three key obligations: to
protect the health of litigants, judicial branch employees, and the public
using court facilities; to maintain critical judicial branch functions; and to
provide appropriate judicial input to the process of protecting the public.
A number of Administrative Orders have been issued in response to the COVID-19 pandemic, available on the judicial COVID-19 News and Resources web page.
COURT RULES
ADM File 2018-16: Amendment of MCR 3.201 and Addition of MCR 3.230 (provides procedural rules to incorporate the Summary Support and Paternity Act to establish a parent’s paternity or support obligation through a summary action)Issued: 9/18/19
Effective: 1/1/20
ADM File 2018-30: Amendment of MCR 8.115 (explicitly allows the use of cell phones and electronic
devices in a courthouse and prohibits certain uses)
Issued: 1/8/20
Effective: 5/1/20
Martin v Martin, published opinion of the Court of
Appeals, released January 28, 2020 (Docket No. 349261).
CHILD CUSTODY – PARENT-CHILD
RELATIONSHIP
“MCL 722.27(1)(c) provides that in a custody dispute, the trial
court, for the best interests of the child at the center of the dispute, may
‘modify or amend its previous judgments or orders for proper cause shown or
because of change of circumstances.’” Martin v Martin,
___ Mich App ___, ___ (2020). “It is presumed to be in the best interests of
the child to have a strong relationship with both of his or her parents,” and
MCL 722.23(j) “of the best-interest factors favors parents who facilitate the
relationship of their children with the other parent”; “[b]ut if the parent
overcomes the presumption with evidence that separation from the other parent
is necessary for the child’s safety, the parent’s acts cannot be counted
against him or her.” Martin, ___
Mich App at ___ (quotation marks and citation omitted). Where plaintiff
“continued to interfere with [defendant’s] relationship with the children,”
“actively obstructed the therapeutic process,” and “escalated her interference
and alienation behaviors and even encouraged her children to spy for her,
leading the court to hold her in contempt and impose a jail sentence,” the
trial court determined that defendant “established proper cause and a change in
circumstances by a preponderance of the evidence” and “after several attempted
less drastic measures failed, the court awarded [defendant] sole physical and
legal custody of the couple’s only remaining minor child and prohibited
[plaintiff] any unsupervised contact.” Id.
at ___. Because “[t]he circuit court thoroughly explained its findings and
actions on the record, did not reach its final order lightly, and anticipated
that [plaintiff] may regain unsupervised parenting time,” there was “no error
in the circuit court’s conclusion that awarding [defendant] sole custody and
preserving that parent-child relationship was in the child’s best
interest.” Id. at ___.
Brown v Brown, published opinion of the Court of Appeals, released
April 9, 2020 (Docket No. 350576).
CHILD CUSTODY – DOMESTIC
VIOLENCE AND PERMANENCE BEST-INTEREST FACTORS
Domestic Violence. Although “[t]he Child Custody Act, MCL 722.21 et
seq., does not provide its own definition of domestic
violence,” “‘domestic violence’ as used by MCL 722.23(k) includes ‘domestic
violence’ as defined in MCL 400.1501 [of the Domestic Violence Prevention and
Treatment Act, MCL 400.1501 et seq].” Brown v Brown, ___ Mich App ___, ___ (2020).
Consequently, where “plaintiff’s standard response to ‘willful disobedience’
involved discussing with the child the reason he or she was being punished,
prayer, spanking the child on the buttocks approximately five times with a PVC
pipe, and expressions of love at the end of the ritual,” “[e]ven if plaintiff
was acting on the basis of his religious beliefs and without malicious intent,”
“plaintiff’s use of corporal punishment as a disciplinary method constituted
domestic violence.” Id. at ___.
Moreover, “‘domestic violence’ unambiguously includes the infliction of mental
harm, and it is obvious that a combination of cruelty and serious physical harm
with expressions of love would further inflict mental harm upon any reasonable
person.” Id. at ___. Further, although “harmful or
abusive conduct toward an animal is not per se domestic
violence,” “harmful or abusive conduct toward a pet can constitute domestic
violence under either MCL 400.1501(d)(i)
or MCL 400.1501(d)(iv), if done for the purpose of distressing
or coercing a person emotionally bonded to that pet.” Brown,
___ Mich App at ___. “The resolution of that issue in a given case will turn on
the trial court’s factual findings regarding the reason or reasons why someone
engaged in particular actions with regard to an animal, and the nature of the
bond between a child and the animal at issue.” Id.
at ___.
Permanence Best-Interest Factor. MCL 722.23(e) “considers the ‘permanence, as a family unit, of the existing or proposed custodial home or homes’”; “the acceptability of the custodial home or homes is not pertinent to this factor.” Brown v Brown, ___ Mich App ___, ___ (2020). “The trial court found that this factor favored defendant because plaintiff’s home involved a setting in which domestic violence existed, while plaintiff provided a more loving and affirming setting that was free from domestic violence”; however, it was “legal error for the trial court to consider acceptability, rather than permanence, of the custodial unit when making findings under Factor (e)” because “the stability, health, or safety of the environment provided by a party is considered in other factors.” Id. at ___ (cleaned up). Where “the children had consistently resided with plaintiff and his wife as a family unit since the parties’ divorce” and had “only visited defendant a few times a year and physically resided with her only a few days at a time,” “there was less of a sense of permanence in defendant’s prospective household, physically or as a family unit”; accordingly, “[t]he trial court’s determination that Factor (e) weighed in favor of defendant was contrary to the great weight of the evidence.” Id. at ___.
Bofysil v Bofysil, published opinion of the Court of Appeals, released
April 23, 2020 (Docket No. 351004).
CHILD CUSTODY – ESTABLISHED
CUSTODIAL ENVIRONMENT, BEST INTEREST FACTORS, AND LEGAL CUSTODY
Established
Custodial Environment. “Determining a child’s established custodial environment is a
pivotal step in a custody battle because it installs the burden of
proof.” Bofysil v Bofysil, ___
Mich App ___, ___ (2020). Because “the court determined that [the minor child]
had an established custodial environment exclusively with [the stay-at-home
parent],” the stay-at-home parent “was only required to establish by a
preponderance of the evidence that granting her sole physical custody was in
[the minor child’s] best interests, and [the working parent] had to prove by
clear and convincing evidence that granting her sole physical custody would be
best for her child”; “[l]eft unsaid was that [the working parent] would have to
prove by clear and convincing evidence that even shared custody would serve
[the minor child’s] best interests.” Id.
at ___. However, where the minor child “clearly had a homelife in which both of
her parents provided for her care and needs,” and “both [parents] provided her
with security, stability, and permanence,” “[t]he evidence preponderates
against the circuit court’s established-custodial-environment finding.” Id.
at ___ (quotation marks and citation omitted).
Best Interest Factors. “A trial court must consider the factors outlined in
MCL 722.23 in determining a custody arrangement in the best interests of the
children involved.” Bofysil v Bofysil, ___ Mich
App ___, ___ (2020). “The fact that the parties agreed before conceiving that
one parent would stay at home to raise the child while the other would
financially support the family does not equate with one parent loving the child
more or having more affection for the child,” “[n]or should that decision
foreclose the result of a custodial disagreement if a relationship ends.” Id.
at __. Further, “[d]espite treating [the working parent] as a less viable
parent because she chose to work outside the home, the court declined to credit
[the working parent] for her ability and willingness to earn an income and
provide health insurance for her child”—there is “no rational reason to both
punish and yet fail to credit a parent for financially supporting his or her
family.” Id. at ___. Accordingly, “the court’s
findings on many factors preponderated against evidence that [the working
parent] was regularly and routinely involved in [the minor child’s] daily care
despite that she worked outside the home.” Id.
at ___. Further, “Michigan courts have repeatedly held that infidelity cannot
be used to measure a parent’s moral fitness under MCL 722.23(f) unless that
infidelity actually interferes with the parent’s ability to parent his or her
child”; accordingly, “[t]he court also erred throughout its best-interest
analysis by focusing heavily on [the working parent’s] new romantic
relationship.” Bofysil, ___ Mich App at ___. “Given the circuit
court’s improper reliance on [the working parent’s] relationship with a married
woman and its bias against [her] role as a working parent,” the court abused
its discretion “in awarding sole physical custody to [the stay-at-home parent]
with such limited parenting time to [the working parent].” Id.
at ___.
Legal Custody. “Pursuant to MCL 722.26a(1)(b), in determining
whether joint legal custody is in the best interest of the child, the court
must consider whether the parents will be able to cooperate and generally agree
concerning important decisions affecting the welfare of the child.” Bofysil v Bofysil, ___ Mich
App ___, ___ (2020) (cleaned up). Because “the parties’ direct communications
were not civil,” “the parties agreed to communicate about issues relevant to
[the minor child] in a notebook”; “[u]nder such circumstances, socially
distancing parental interactions may be an appropriate method for maintaining a
safe and efficient approach to shared parenting responsibilities.” Id.
at ___. Accordingly, where “[t]here was no clear record indication that the
parties could not agree on major decisions for [the minor child],” “the circuit
court abused its discretion in awarding sole legal custody to [the stay-at-home
parent],” and on remand, the court must “reconsider its award of legal custody
based on up-to-date information and must take into account alternative
communication methods, if feasible.” Id.
at ___.
Foster v Foster, published opinion of the Michigan Supreme Court, decided April 29,
2020 (Docket No. 157705).
DIVORCE – CONSENT JUDGMENT,
MILITARY DISABILITY BENEFITS, AND FEDERAL PREEMPTION
“Veterans who became disabled as a result of military service are eligible for disability benefits,” but “in order to prevent veterans from receiving double payment in the form of retirement pay and disability benefits, federal law typically insists that, to receive disability benefits, a retired veteran must give up an equivalent amount of retirement pay.” Foster v Foster, ___ Mich ___, ___ (2020), overruling Megee v Carmine, 290 Mich App 551 (2010) (quotation marks and citations omitted). “An exception to the typical bar against receipt of both retirement pay and disability benefits . . . is [Combat-Related Special Compensation (CRSC)], which is separate from standard VA disability benefits.” Id. at ___. Federal law “preclude[s] any provision of a divorce judgment requiring that a nonveteran former spouse receive payments in an amount equal to what he or she would have received if the veteran former spouse had not waived his or her retirement pay in order to obtain” “any disability benefits, including CRSC[.]” Id. at ___. Accordingly, where the parties entered into a consent judgment of divorce “which provided that defendant would pay plaintiff 50% of his military retirement benefits” and that “if defendant waived a portion of his military retirement benefits in order to receive military disability benefits, he would continue to pay plaintiff an amount equal to what she would have received had defendant not elected to receive such supplemental disability benefits,” “federal law preempts state law such that the consent judgment is unenforceable to the extent that it required defendant to reimburse plaintiff for the reduction in the amount payable to her due to his election to receive CRSC.” Id. at ___.
Under Michigan
court rule, unpublished decisions are not considered authoritative. They are
cited here to illustrate points of interest for future similar cases.
Crews v Crews, unpublished opinion of
the Court of Appeals, released October 10, 2019 (Docket No. 346440). The
repeated false allegations by defendant against plaintiff, defendant’s
withholding of plaintiff’s parenting time, and the 42 unexcused school days
that the children missed in the several months following the last custody
order, including 10 consecutive days missed, was sufficient for proper cause or
change of circumstances warranting a review of the custody order, as well as
support for plaintiff receiving sole legal and primary physical custody of the
minor children.
Schaiberger v Peiffer,
unpublished opinion of the Court of Appeals, released October 22, 2019 (Docket
No. 347494). The trial court did not err when it found by clear and
convincing evidence that physical custody of the children should be awarded to
the petitioners (maternal grandparents) when the parents had not complied with
the terms of the guardianship placement plans, including having drug relapses,
lack of honesty with healthcare providers, and their decision not to start substance
abuse counseling earlier.
Reno v Boggess, unpublished opinion of
the Court of Appeals, released October 24, 2019 (Docket No. 347805). The
trial court did not commit a plain or obvious error when it granted defendant a
standard parenting-time schedule rather than a schedule tailored to account for
plaintiff’s unusual work schedule of 4 weeks working out of state followed by 2
weeks off work, especially when the parties had a history of working together
to make adjustments to parenting time to account for plaintiff’s schedule.
Ncheuguim v Maguikuie Tegadjoue,
unpublished opinion of the Court of Appeals, released November 14, 2019 (Docket
No. 344412). That the parties agreed to no child support does not
necessarily make application of the Michigan
Child Support Formula unjust or inappropriate because an agreement by the
parties for child support that deviates from the MCSF is only enforceable by
court order if the court justifies the deviation using the mandatory criteria
listed in MCL
552.605(2).
Suljic v Suljic, unpublished
opinion of the Court of Appeals, released November 14, 2019 (Docket No.
349021). The trial court properly denied plaintiff’s motion to modify
custody when plaintiff did not provide supporting documentation to meet the
threshold issue of change of circumstances or proper cause, but rather
plaintiff referenced four previous unsubstantiatied CPS investigations into her
allegations of defendant’s abuse of the children.
Ploski v Wisz, unpublished opinion of
the Court of Appeals, released November 19, 2019 (Docket No. 348792). The
trial court properly considered under several best interest factors in its custody
analysis, as well as under its parenting time considerations, the impact on the
minor child when defendant attached a recording device to the minor child to
record his therapy session and defendant’s disregard of supervised parenting
time rules and dramatic encounters with supervisors.
Matheson v Schmitt, unpublished opinion of
the Court of Appeals, released November 21, 2019 (Docket No. 347022). A
decision regarding vaccinations falls under legal custody as an important
decision affecting the welfare of the child, and because the parties shared
joint legal custody and could not agree on vaccinations, the responsibility
shifted to the trial court to resolve the issue in accordance with the child’s
best interests. Under factors (b), (c), and (l), the trial court concludedthat
vaccinating the child was in her best interests because it would protect her
from a host of potential serious diseases, and the evidence did not establish
that any vaccinations would be harmful to the child, or that vaccination was
otherwise against the child’s best interest.
Haven v Phillis, unpublished opinion of
the Court of Appeals, released December 12, 2019 (Docket No. 345994). When
plaintiff did not file for revocation of an acknowledgment of paternity until
nine years after the minor child’s birth and well after one year from the
parties’ signing of the acknowledgment, and absent a request for an extension
of the deadline, her motion failed to comply with mandatory statutory
limitations per MCL
722.1437(1).
Farris v Farris, unpublished opinion of
the Court of Appeals, released December 17, 2019 (Docket No. 349572). The
trial court commited clear legal error by failing to consider in its legal
custody determination MCL
722.26a(1)(b) – whether the parents would be able to cooperate and
generally agree concerning important decisions affecting the welfare of the
children. The trial court also erred by awarding defendant parenting time at
plaintiff’s discretion when defendant had requested a specific parenting time
schedule and MCL
722.27a(8) provides that “[p]arenting time shall be granted in specific
terms if requested by either party at any time.”
Iannucci v Jones, unpublished opinion of
the Court of Appeals, released December 19, 2019 (Docket No. 345886). As
found by the circuit court, the United States Supreme Court has held that state
courts may invade veterans’ disability benefits that have already been
distributed to the veteran as a source of income for child support purposes.
Aguilar v Aguilar, unpublished opinion of
the Court of Appeals, released December 19, 2019 (Docket No. 347338). The
trial court did not err when it concluded that an established custodial
environment existed only with the plaintiff and when it found that it was in
the children’s best interests to award her primary physical custody when she
had been their primary caretaker and was involved in their education, medical
care, and other activities, while defendant was uninvolved in these areas until
plaintiff filed for divorce.
Argel v Argel, unpublished opinion of the Court of Appeals, released December 26, 2019
(Docket No. 348686). The trial court should have considered
defendant’s evidence that the child had developed troubling behaviors as a
result of her custodial environment and determined whether the evidence was
such that, if left undisputed, it would satisfy the proper cause or change of
circumstances threshold or, if it determined that there was a question of fact,
it should have held an evidentiary hearing to make specific findings as to the
underlying facts.
Shea v Shea, unpublished opinion of the Court of Appeals, released
January 2, 2020 (Docket No. 349556). When father motioned the court to change his school-year parenting time
from three overnights every two-week period to seven overnights per two-week
period, the request constituted a significant reduction in plaintiff’s
overnight visits which, in accordance with Rains, would alter the children’s established custodial environment with her
and, therefore, amounted to a change in custody, despite the fact that the
parties shared an existing joint custodial environment.
Throop v Devries and Devries,
unpublished opinion of the Court of Appeals,
released January 7, 2020 (Docket No. 345987). The trial court considered evidence submitted
by appellants (paternal grandparents) but determined that theoretical, general,
or speculative evidence did not overcome the presumption that plaintiff’s decision to deny
grandparenting time did not create a substantial risk of harm to the child.
Grayer v Grayer, unpublished opinion of the Court of Appeals, released
January 21, 2020 (Docket No. 349783). When defendant had moved 140 miles away and was requesting a change in
parenting time, the trial court
erred by failing to first determine whether the modified parenting-time
schedule would alter an established custodial environment and further erred in ordering a parenting time
schedule with a 25/75 split that clearly altered the established custodial
environment afforded by the previous equal split.
Marlow v Marlow and Van Der Want,
unpublished opinion of the Court of Appeals, released January 23, 2020 (Docket
No. 345021). When defendant was self-employed, refused to pay support,
and had been found in contempt of court, the trial court granted plaintiff’s
motion to appoint a receiver, who was then empowered by court order to collect
rents on defendant’s properties and all income related to defendant’s medical
practice, and to pursue collections to satisfy the judgment of divorce and
child support debts in both Michigan and Illinois. A later trial court Order
Resolving Differences established apportionment to plaintiff, her attorney, the
receiver, and the receiver’s attorney, of any collections from defendant’s
income; because that order did not seek payment of any receiver’s or attorney’s
fees and costs as a “child support arrearage,” it was not inconsistent with the
plain statutory language defining the methodology for child support calculation
and should not have been set aside.
Jacobs v Rizzo, unpublished opinion of the Court of Appeals, released
January 28, 2020 (Docket No. 350428). When defendant was more involved in the child’s schooling and undertaking
activities with the child, plaintiff did not always properly clothe and groom
the child, and plaintiff provided inconsistent testimony and misled the trial
court regarding him being the child’s primary caregiver, granting primary
physical custody to defendant was in the minor child’s best interests.
Carpenter v Carpenter,
unpublished opinion of the Court of Appeals, released January 30, 2020 (Docket
No. 344512). Under the 2017
Michigan Child Support Formula, veterans’ administration benefits – whether for
disability or retirement – should be considered a source of income for the
purpose of child support calculations. 2017
MCSF 2.01(C).
Kortman v Kortman,
unpublished opinion of the Court of Appeals, released February 13, 2020 (Docket
Nos. 349270; 349632). Because the minor children had been living in
Mexico for six consecutive months before defendant filed his divorce complaint
in Mexico, and divorce proceedings were initiated there first, the trial court
properly determined under the Uniform Child-Custody and Jurisdiction and
Enforcement Act that Mexico had jurisdiction.
Sutariya v Sutariya,
unpublished opinion of the Court of Appeals, released February 18, 2020 (Docket
No. 345115). The trial court
did not err in finding that an established custodial environment existed only
with plaintiff when the children resided primarily with her, she attended
school and recreational activities for the children, the young triplets’
medical needs were not met in defendant’s care, and the older child was
uncomfortable during parenting time with defendant.
O’Brien v D’Annunzio,
unpublished opinion of the Court of Appeals, released February 27, 2020 (Docket
No. 347830). Granting legal
and physical custody to plaintiff and suspending defendant’s parenting time,
subject to periodic review, was appropriate when the best interest factors
clearly supported the change because of defendant’s actions producing
significant conflict between her and the children, defendant’s attempts to
alienate the children from plaintiff by placing calling restrictions on the
children’s phones, various professionals testifying to defendant’s damaging
relationship with the children, and when parenting time with defendant would
endanger the children’s mental or emotional well-being.
Kang v Xue,
unpublished opinion of the Court of Appeals, released February 27, 2020 (Docket
No. 350295). Defendant
failed to prove that her change of residence would be in the child’s best
interest under MCL 722.31(4) the proposed out-of-state move would: benefit
defendant but not necessarily benefit the child; make it difficult to sustain
the frequency and duration of parenting time to foster a relationship with
plaintiff; and discontinue the child’s stable support system currently provided
by plaintiff’s parents.
Jacob v Jacob, unpublished opinion of the Court of Appeals,
released March 3, 2020 (Docket Nos. 344580; 344598; 344654; 344809; 344894;
347014; 350162). The circuit
court erred as a matter of law by concluding that proper cause or a change of
circumstances existed to warrant revisiting the minor child’s physical and
legal custody based on plaintiff’s abrupt change of travel plans, multiple
e-mails making derogatory comments about defendant and others involved in court
proceedings, plaintiff disregarding court orders and animosity toward defendant
– all of which were not shown to have significantly impacted the minor child
and her well-being.
Simpson v Simpson, unpublished opinion of the Court of Appeals,
released March 10, 2020 (Docket No. 350584). Although defendant – primary physical custodian and joint legal custodian
– was convicted of a felony and was sentenced to six months in jail and
neglected to inform plaintiff of these developments, the minor child performed
very well in school and extracurricular activities and neither party presented
any evidence of emotional difficulties resulting from defendant’s absence;
therefore, the threshold for proper cause or change in circumstance warranting
a change in custody was not met.
Negron v Watts, unpublished opinion of the Court of Appeals,
released March 12, 2020 (Docket No. 350016).
Although the children were absent from Michigan
when the proceeding commenced, because Michigan was the children’s home state
within six months before the commencement of the proceeding and plaintiff
continued to live in Michigan, the trial court did not err when it determined
that it had subject-matter jurisdiction to make the initial child custody
determination.
Shannon v Ralston, unpublished opinion of the Court of Appeals,
released March 12, 2020 (Docket Nos. 350094; 350110). Under
MCL 600.5080(1) (domestic relations arbitration), the trial court was not
obligated to hold an evidentiary hearing to satisfy itself the arbitration
decision was in the child’s best interest when it reviewed the extensive record
and independently determined that the arbitrator’s custody award was in the
child’s best interest.
Stanley v Thompson, unpublished opinion of the Court of Appeals,
released March 17, 2020 (Docket No. 349779). Considering the evidence that: defendant failed to recognize and address
one of the children’s behavioral issues; defendant did not always meet the
children’s medical needs; defendant
stopped paying child support; defendant exhibited threatening behavior toward
plaintiff in the children’s presence; plaintiff and defendant could rarely
agree on important matters regarding the children; and the animosity between
the parties, there was a preponderance of the evidence that plaintiff should be
awarded sole legal custody.
Roat v Roat, unpublished opinion of the Court of Appeals,
released March 17, 2020 (Docket No. 350299). The trial court failed to comply with MCR 3.210(C)(6) when it adopted on the same day the FOC’s
recommendation regarding custody and parenting time changes, denying the
parties any meaningful opportunity to object before the trial court entered the
order.
Davis v Davis, unpublished opinion of the Court of Appeals,
released March 19, 2020 (Docket No. 351076). When the trial court found that two best interest factors slightly
favored plaintiff, two factors slightly favored defendant, that the rest of the
factors were equal or inapplicable, those factors favoring plaintiff or
defendant only slightly favored the respective party, and did not explain how
these findings justified concluding that defendant proved by clear and
convincing evidence that it was in the children’s best interest to modify
custody, the trial court’s decision to modify the custody order constituted a
palpable abuse of discretion.
Shipley v Shipley, unpublished opinion of the Court of Appeals,
released April 2, 2020 (Docket No. 349502). Although the children were moved unexpectedly from parent to parent and
state to state, both parties provided a stable and satisfactory home for their
children, and the court found that the children appeared to be “well adjusted
in all of their schools”;” therefore, the trial court erred by finding proper
cause and a change of circumstances based on changes arising since the entry of
the original custody order because the changes did not significantly impact the
children’s wellbeing.
Romain v Romain, unpublished opinion of the Court of Appeals,
released April 16, 2020 (Docket No. 347065). The facts of the hearing and statements made therein placed plaintiff on
notice that support was at issue sufficient to allow support to be modified
retroactively in accordance with the requirements of MCL 552.603(2).
Medina v Medrano, unpublished opinion of the Court of Appeals,
released April 16, 2020 (Docket No. 350487). The
trial court made some general findings, but did not address the individual factors
under the child custody act sufficient to allow the Court Appeals to review the
decision requiring remand for a new de novo hearing, at which up-to-date
information may be presented, and after which specific findings of fact must be
made in relation to each factor.
Amerson, Jr., v Smiley, unpublished opinion of the Court of Appeals,
released April 16, 2020 (Docket No. 350930). The trial court’s order of supervised parenting time for defendant was
justified given the significant evidence that defendant failed to return the
child to plaintiff after her scheduled parenting time on multiple occasions and
kept the child out of school without providing a reason.
Hatfield v Farman, unpublished opinion of the Court of Appeals,
released April 23, 2020 (Docket No. 350243). Following a holding in Ghidotti, 459
Mich App 189 (1998), because defendant received means-tested
public assistance benefits, the trial court was required to make specific
findings regarding why the MCSF would be unjust or inappropriate in order to
deviate and impute income to him.
Sigmon v Johnson, unpublished opinion of the Court of Appeals,
released April 23, 2020 (Docket No. 350254). In evaluating plaintiff’s request for change of domicile, the trial court
found in accordance with Rains that it
was unnecessary to evaluate the best interest factors because an established
custodial environment did not exist between defendant and the 5-year-old minor
child as evidenced by his inconsistency in exercising parenting time, lack of
housing and financial stability, and inability to get the child to daycare on
time and properly care for her.
Ocharzak v Ocharzak, unpublished opinion of the Court of Appeals,
released April 23, 2020 (Docket No. 350493). Although plaintiff established that her proposed out-of-state move could
increase her income, a change of domicile was not warranted when plaintiff did
not establish that it would improve the child’s quality of life, or that the
move would allow the preservation of the parental relationship between
defendant and the child.
Murray v Murray, unpublished opinion of the Court of Appeals,
released April 23, 2020 (Docket No. 350802). Because the parties’ agreement in their judgment of divorce that if
either relocated closer in distance to the other, the move would serve as
sufficient proper cause or change of circumstances to revisit the custody and
parenting-time schedule, the trial court did not err in finding that the terms
of parties’ agreement satisfied defendant’s burden of proof to revisit custody.
Adams v Youker, unpublished opinion of the Court of Appeals,
released April 30, 2020 (Docket No. 350999). When the minor child reached school age,
moving from a one week on, one week off schedule to three weekends
per month during the school year and a 50/50 split of holidays, school breaks,
and summer vacation, amounts to a change in the custodial environment but the
trial court erred when it failed to articulate why it was in the minor child’s
best interests to alter the custodial environment with defendant and to attend
one school district over the other.
Brown v Pentoney, unpublished opinion of the Court of Appeals,
released May 7, 2020 (Docket No. 349532). It was not necessary for the trial court to directly interview the
children when determining whether they had a reasonable custody preference
because the guardian ad litem had spoken to the children about their
preferences, and despite the children being 13 and 15, the trial court did not
err in finding that the children were unable to express a reasonable preference
given defendant’s manipulation and parental alienation tactics.
White v Trezil, unpublished opinion of the Court of Appeals,
released May 14, 2020 (Docket No. 349855). The best interests factors clearly preponderated in favor of defendant
being awarded physical custody of the minor children when plaintiff remained in
an unhealthy romantic relationship which had negatively affected the minor
children to the point of one of the children attempting suicide, she had kept
the minor children in an unstable environment despite events including a friend
of plaintiff’s sexually assaulting one of the children in the home, plaintiff
was financially unstable, and there was evidence that plaintiff had engaged in
parental alienation.
Cole v Cole, unpublished opinion of the Court of Appeals,
released May 14, 2020 (Docket No. 351382). Although the trial court erred in not considering the reasonable
preference of the minor children regarding custody, the remaining evidence in
favor of awarding custody to plaintiff was sufficient not to revisit the
children’s preferences when the children were happy and provided for in both
parties’ homes, but plaintiff had been the primary caregiver and could provide
a more stable environment for the children’s daily care because of defendant’s
work schedule.
Roberts, Jr., v Day, unpublished opinion of the Court of Appeals,
released May 21, 2020 (Docket No. 352015). In plaintiff’s paternity motion and dispute over jurisdiction between
California and Michigan, the jurisdictional dispute regarding hearing the
paternity matter is moot because the California court had already terminated
plaintiff’s parental rights and likely finalized the child’s adoption but
plaintiff had failed to appear in the California case.
Ashmore v Ashmore, unpublished opinion of the Court of Appeals,
released June 4, 2020 (Docket Nos. 350375; 351761; 351844). The
trial court erred when it did not find proper cause to revisit custody when the
parties’ agreement five years earlier was that
if the child still wanted to move to New Jersey by the second semester of her
8th grade year, and the parties followed certain agreed-upon steps but still
could not agree on the child’s primary residence, proper cause would exist to
revisit custody.
Cyster-Smith v Guerrero, unpublished opinion of the Court of Appeals,
released June 4, 2020 (Docket No. 350583). The trial court erred when it responded to defendant’s motion to
designate a school for the minor child by conducting only a change of custody
analysis rather than: (1) a best-interest analysis to determine the specific
issue the parties disagree over—school designation; and (2) once that specific
issue is resolved, one of the parties can then move for a change of custody on
the basis of the resolution of the specific issue.
Faulkner v Cruz, unpublished opinion of the Court of Appeals, released June 11, 2020 (Docket No. 351409). Michigan had jurisdiction under the UCCJEA because Michigan was the children’s home state for the nine years immediately preceding defendant’s relocation of the children to Ohio, and within 6 months of the time that plaintiff commenced proceedings and requested that the trial court accept jurisdiction under the UCCJEA, plaintiff continued to reside in Michigan, and the Ohio court had stated that it no longer had exclusive jurisdiction.
SCAO POLICIES
NEW AND REVISED COURT FORM
– DOMESTIC RELATIONS VERIFIED FINANCIAL INFORMATION FORM
The State Court Administrative Office (SCAO) has created and revised CC 320, Domestic Relations Verified Financial Information Form, “to accommodate revisions to MCR 3.206, ordered by the Michigan Supreme Court on November 13, 2019”; “[p]lease note that after release the form was revised to correct an error,” and “[o]nly the 1/20-Ver. 2 should be used.” See the January 10, 2020 SCAO Memorandum, Notice of Creation and Revision of CC 320, Domestic Relations Verified Financial Information Form, for a brief explanation of the form and a copy of the form. See the 1-13-20 edition of IMPACT, Administrative Topics, for more information on ADM File No. 2002-37 and ADM File No. 2018-19, both of which amended MCR 3.206, effective January 1, 2020.
FRIEND OF THE COURT –
ALTERNATIVE DISPUTE RESOLUTION (ADR) PLAN
Effective January 1, 2020, ADM File No. 2018-13 added MCR 3.224 “to make more uniform the ADR processes used by Friend of the Court offices.” Staff Comment to ADM File No. 2018-13, issued July 24, 2019.
SUMMARY SUPPORT AND
PATERNITY ACT – PROCEDURAL COURT RULES
Effective January 1, 2020, ADM File No. 2018-16 amended MCR 3.201 and added MCR 3.230 to “provide[] procedural rules to incorporate the Summary Support and Paternity Act (366 PA 2014; MCL 722.1491, et seq.) to establish a parent’s paternity or support obligation through a summary action.” Staff Comment to ADM File No. 2018-16, issued September 18, 2019.
Friend of the Court Bureau memoranda
With
courts and friend of the court (FOC) offices handling hearings and appointments
remotely, parties to an FOC case can electronically sign and securely transmit
electronic documents to the court or FOC. This memorandum provides
recommendations on how to obtain an electronic signature from a party to a
domestic relations case.
Governor
Whitmer signed Executive Order 2020-35 (EO) to close all schools for the
duration of the school year. The EO offers districts an array of methods to
continue education, end the school year, and provide an alternative calendar.
Because many parenting time and support orders tie provisions to the school
year, FOC offices will be asked to interpret the orders under these unusual
conditions. Although the trial courts may ultimately have to determine what
their orders provide if the parties disagree, this memorandum’s purpose is to
provide FOC offices guidance in determining whether to enforce parenting time
provisions and child support provisions absent court action.
This
memorandum provides procedures for friend of the court offices to inactivate
and close cases.
MICHIGAN IV-D MEMORANDUMS (OFFICE OF CHILD SUPPORT)
Due to the changing circumstances
of the COVID-19 pandemic, OCS is working to enable and support long-term remote
access options for county IV-D offices to access IV-D applications and data.
OCS offered remote access solutions for counties in IV-D Memorandum 2020-011, but
referred to these solutions as temporary for the duration of the pandemic. This
IV-D Memorandum describes options that OCS is considering for permanent remote
access for county IV-D offices. Remote access solutions approved by OCS since
the start of the pandemic, and those that may be submitted and approved as a
result of the pandemic, will not be subject to withdrawal of approval until an
acceptable permanent alternative is available. This IV-D Memorandum includes
information on the process for how IV-D offices can request additional
technology equipment due to COVID-19. This memorandum also announces an update to
Exhibit 2020-011E3, Cooperative Reimbursement Program (CRP) Contract Manager
List due to a recent staffing change among the OCS contract managers.
2020-022 (August 5, 2020) Updates to Hague Child Support Convention Forms
This IV-D Memorandum announces the
following updates to the Hague Child Support Convention (Convention) forms: a
new expiration date of February 28, 2023; and the addition of the Paperwork
Reduction Act of 1995 Statement of Public Burden. There are no changes to
content in the forms. IV-D workers will use the updated Convention forms for
manual case processing. They can access the forms through the OCSE website or
from mi-support; the Convention forms are not available in the Michigan Child
Support Enforcement System (MiCSES).
2020-021 (July 27, 2020) Public Health Care Coverage Updates
This IV-D Memorandum introduces policy and system updates to comply with federal regulation1 and state law revisions that allow parents to meet their health care coverage obligations with public health care coverage. This IV-D Memorandum explains new functionality to manually and automatically enter public health care coverage information on the Member Dependent Insurance (MDIN) screen in the Michigan Child Support Enforcement System (MiCSES). This functionality will be implemented with the MiCSES 10.4.1 release on July 31, 2020.
This IV-D Memorandum also announces updates to medical support forms in MiCSES with the 10.4.1 release.
Finally, this IV-D Memorandum explains an update to a federal regulation4 which deleted the requirement that the cost of health insurance be measured based on the marginal cost of adding the child to the health insurance policy. This gives states flexibility when determining the health care coverage cost mandated by the order.
2020-020 (July 9,
2020) Introduction of the Resource Guide for Referring Child Support Customers
to Available Resources
This IV-D Memorandum introduces a Resource Guide that IV-D staff may use to refer payers and support recipients to resources for help with basic needs. It contains contact information for organizations that provide assistance with food, housing, health care, and parenting, among other needs. It also provides contact information for various government agencies, financial services, legal services, and employment services.
2020-019 (June
15, 2020) Revisions to Intergovernmental Forms
The federal Office of Child Support Enforcement (OCSE) has announced a revised expiration date and other minor updates to the federally approved standard intergovernmental forms. The revised forms will be available in the Michigan Child Support Enforcement System (MiCSES) on June 19, 2020.
2020-018 (June
11, 2020) Discontinued Phone Number for the Michigan Unemployment Insurance
Agency’s (MUIA’s) FOC Unit Customer Service
This IV-D Memorandum announces that the phone number for MUIA’s FOC Unit Customer Service has been discontinued. FOC staff who seek MUIA assistance will refer to MUIA’s Other Party (OTHP) ID for contact information.
2020-017 (June 8,
2020) Suppression of Forms in the Michigan Child Support Enforcement System
(MiCSES) Due to the Good Cause Status of a Case
This IV-D Memorandum announces a correction to a system error that resulted in MiCSES’ noncompliance with IV-D good cause policy and federal regulations. OCS has corrected the good cause process to include the suppression of forms sent to parties as a result of Title IV-D activity on IV-D cases with an active public assistance record and a good cause status of “P” (Pending), “E” (Good Cause Granted, End Action), or “D” (Good Cause Granted, Continue Action). Depending on the CP’s good cause status, certain forms in MiCSES will be prevented from automatically or manually generating to the custodial party (CP). This change will be implemented June 12, 2020 with the MiCSES 10.4 Release.
2020-016 (June 8,
2020) Re-establishment of the Professional License Interface
This IV-D Memorandum announces that OCS will re-establish the professional license interface between the Michigan Department of Licensing and Regulatory Affairs (LARA) and the Michigan Child Support Enforcement System (MiCSES). IV-D workers use this information to suspend professional licenses, locate non-custodial parents (NCPs), estimate income when calculating support, evaluate the ability to pay, and enforce child support.
2020-015 (June 1,
2020) Impacts of the COVID-19 Pandemic on Child Support Initiatives and Operations
Continuity
Delivery of Title IV-D child support services has been compromised during the COVID-19 pandemic for a variety of reasons. Because child support services are essential, it is necessary to provide these services while considering the health and safety of families and IV-D employees. OCS, along with the Program Leadership Group (PLG), has created six Operations Continuity Teams to help ensure Michigan’s child support operations continue while considering social distancing, CDC guidance, and the governor’s orders. The teams, which will be temporary, will identify and address challenges, recommend solutions, and establish communication plans – efforts that began prior to the formalized creation of the teams. This IV-D Memorandum provides an overview of the six Operations Continuity Teams. It also identifies some of the COVID-19-related challenges OCS currently faces and how those challenges are expected to affect child support work going forward.
2020-014 (May 22,
2020) Genetic Testing Sample Collection During the COVID-19 Pandemic
This IV-D Memorandum announces the statewide restart of genetic testing sample collections effective June 1, 2020. OCS suspended genetic testing sample collections (“sample collections”) on March 19, 2020 due to Executive Order 2020-21, which directed Michigan citizens to “stay home, stay safe” during the COVID-19 pandemic. Subsequent executive orders extended these directives and instructed that organizations take precautions to protect people during the pandemic.
2020-013 (May 12,
2020) Partner Operations During the COVID-19 Pandemic
Due to various measures enacted as result of the COVID-19 pandemic, FOC and PA offices in Michigan must assess their operations and find alternate methods to serve Michigan’s child support customers. Any FOC or PA offices that cannot find a way to continue to provide services should contact OCS for assistance in addressing barriers or obstacles. This memorandum discusses OCS resources and assistance to support FOC and PA offices in providing services. It also explains the approach OCS plans to take for the evaluation of the fiscal year 2020 Contract Performance Standards (CPS).
2020-012 (April
27, 2020) Revised Interstate Notice of Lien (FEN060)
This IV-D Memorandum announces updates to the Interstate Notice of Lien (FEN060). The federal Office of Child Support Enforcement (OCSE) announced revisions to the Interstate Notice of Lien on July 26, 2018. Updates made to the FEN060 will ensure that the OCS form matches the federal form. The revised FEN060 will be implemented in the Michigan Child Support Enforcement System (MiCSES) with the 10.3.3 Release on May 1, 2020.
2020-011 (April
9, 2020) County IV-D Office Requests for Remote Access Due to COVID-19
Stay-at-Home Orders
Due to various stay-at-home orders enacted as a result of the COVID-19 pandemic, OCS is temporarily offering remote access options to IV-D systems and resources that will enable county IV-D staff to conduct child support program functions at a home-based office.
2020-010 (March
30, 2020) Documenting the Health Care Coverage Type and Updates to the National Medical Support Notice (NMSN)
*Note: This memorandum is obsoleted and replaced by 2020-021.
2020-009 (March
23, 2020) Information Technology (IT) Support Options, the Billing Process for
IT Services, and Changes to Chapter 1 of the Michigan
IV-D Child Support Manual
This IV-D Memorandum introduces the new Section 1.23, “Cooperative Reimbursement Program (CRP) Agreements (Contracts),” of the Michigan IV-D Child Support Manual. Section 1.23 describes the information technology (IT) support options available to county FOC, PA and combined IV-D offices that began fiscal year (FY) 2016 and the process for billing IT hardware, software and county-supplied data-processing services. The IT hardware, software and county-supplied data-processing services discussed throughout the manual section and its exhibits are reimbursable via Title IV-D funds only if they are: needed to provide IV-D services to IV-D customers pursuant to OCS policies; or authorized under other federal Title IV-D guidance or law.
2020-008 (March
12, 2020) New Procedure for Sending Bankruptcy Notices to FOC Offices and
Introduction of Section 6.15, “Bankruptcy,” of the Michigan
IV-D Child Support Manual
This IV-D Memorandum announces a
change to the bankruptcy notification procedures.
OCS Central Operations staff will no longer mail a bankruptcy notice received from a trustee to the FOC office. Instead, Central Operations staff will scan the bankruptcy notice, upload it to the Michigan Child Support Enforcement System (MiCSES) Historical Reprints (FHST) screen, and notify the FOC bankruptcy contact via email.
2020-007
(February 28, 2020) Updated Phone Number for Passport Denial and Tax Offset
This IV-D Memorandum announces an update to the phone number that is used for passport denial and tax offset in the Michigan Child Support Program.
2020-006
(February 27, 2020) Internal Revenue Service’s (IRS’s) Background Investigation
Requirements: Local Office Preparation Encouraged
This IV-D Memorandum announces the IRS’s mandated background investigation requirements for safeguarding and protecting federal tax information (FTI). These requirements include background and citizenship or residency checks of current and prospective IV-D staff to determine their suitability for accessing FTI within the IV-D program. This IV-D Memorandum also explains state law that grants Michigan the authority to conduct IRS background investigations for FTI purposes. In addition, this memorandum provides an overview of the background investigation process and actions that IV-D offices may take to prepare for implementation of the requirements.
2020-005
(February 24, 2020) Update to the Notice of Order of
Filiation (DCH-0839)
This IV-D Memorandum announces an updated version of the Notice of Order of Filiation (DCH-0839) in the Michigan Child Support Enforcement System (MiCSES). The DCH-0839 is available in MiCSES as Form 6130.
2020-004
(February 21, 2020) Behavioral Interventions in Child Support, Phase 2
This IV-D Memorandum shares the results of the review and modification intervention conducted by member offices of the Behavioral Interventions Workgroup (BI Workgroup) in the spring and summer of 2019. It also includes information on OCS’s plans for working on a second phase of behavioral interventions with IV-D offices in 2020 and 2021. This memorandum is informational only and does not introduce any new statewide policy or procedure.
2020-003
(February 20, 2020) Office of Child Support (OCS) Equity Impact Assessment Tool
and Community Advisory Council
This IV-D Memorandum provides information about the OCS Equity Impact Assessment Tool, which OCS will use to help ensure that its statewide IV-D policies and procedures result in equitable outcomes for the diverse families Michigan’s child support program serves. OCS is committed to the principles of diversity, equity and inclusion within Michigan’s child support program. This IV-D Memorandum also explains the role of the OCS Community Advisory Council, which is an important component of the Equity Impact Assessment Tool. This memorandum does not require action and does not introduce changes to any IV-D policy or procedure.
2020-002 (January
17, 2020) Documenting Parental Engagement and Revised Order Entry Methods
This IV-D Memorandum introduces policy on documenting whether parents are engaged in establishing their new or modified child support orders. Federal regulation requires states to track and analyze order and payment data to ensure that support amounts calculated with the guidelines are appropriate, and deviations from the guidelines are limited. One of the required data elements, rates of default, will be evaluated further by quantifying parental engagement during the establishment of new and modified orders. The collection of this data will assist SCAO with its review of the Michigan Child Support Formula (MCSF)
2020-001 (January
17, 2020) Corrections to the National Change of Address (NCOA) Process
This IV-D Memorandum announces corrections to the National Change of Address (NCOA) batch process in the Michigan Child Support Enforcement System (MiCSES). These corrections to the NCOA process will ensure: MiCSES sends only IV-D cases with eligible addresses to the Federal Case Registry (FCR) for submittal to the NCOA for address processing; and the NCOA batch process correctly records all responses received from the NCOA, regardless of the member’s address status in MiCSES.
2019-023 (December 23, 2019) Reinstatement of the Client Participation Payment
(CPP) Beginning in January 2020
This IV-D Memorandum discusses the State of Michigan’s
reinstatement of the CPP (also known as the “pass-through payment”). Beginning
in January 2020, OCS will pass through current child support collections to families
that currently receive Family Independence Program (FIP) cash assistance as
follows: families with one child will be eligible to receive up to $100 a
month; and families with two or more children will be eligible to receive up to
$200 a month.
