"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: Court rule updates, SCAO form updates, legislative activity, and published opinion summaries have been published here with permission from the Michigan Judicial Institute’s “IMPACT” publication.
ADMINISTRATIVE ORDERS
ADM File No. 2021-14: Adoption
of Administrative Order No. 2021-6 (Mandatory Submission of Case Data to
the Judicial Data Warehouse)
Issued: 9/23/21
Effective: 1/1/22
PUBLISHED OPINIONS
SAFE DELIVERY OF NEWBORNS LAW (SDNL)
– TERMINATION OF PARENTAL RIGHTS AND REASONABLE EFFORTS
Termination
of Parental Rights. Under
the SDNL, an individual claiming to be the nonsurrendering parent of the
newborn may file a petition with the court for custody, no later than 28 days
after notice of surrender of the newborn has been published. In re Baby Boy Doe, ___ Mich App ___, ___ (2021). In this case,
petitioner filed for divorce against his then-pregnant wife and sought custody of
his then-unborn child in the Ottawa court; baby boy Doe was born and
surrendered to respondent child placing agency unbeknownst to petitioner; the
surrendering parent released her rights to Doe in the Kalamazoo court; and the
parental rights of both parents were subsequently terminated by the Kalamazoo
court. Id. at ___. “[I]t is
undisputed that (1) petitioner was not aware of the county where Doe was
located or the county where Doe was surrendered until after petitioner’s
parental rights were terminated; (2) Ottawa County was where petitioner was
located; and (3) petitioner filed his complaint for divorce/custody in Ottawa
County.” Id. at ___.
“Because petitioner had properly and timely filed a petition for custody of
Doe, the petition to terminate petitioner’s parental rights filed by respondent
. . . and the Kalamazoo court’s subsequent entry of a termination order was in
violation of” the SDNL’s termination of parental rights to newborn provision,
MCL 712.17. In re Baby Boy Doe,
___ Mich App at ___. “While respondent and the Kalamazoo court may not have
been aware, at the time of the termination order, that petitioner had filed a
petition for custody, the fact remains that he had, and the actions of
respondent and the Kalamazoo court were therefore in error.” Id. at ___ (noting that while “the
termination of the parental rights of a nonsurrendering husband under the SDNL
is valid” in general, “nonsurrendering parents [are not] prohibited from
challenging whether those procedures were in fact followed correctly”).
Reasonable
Efforts. MCL 712.7(f)
provides that the child placing agency must “make reasonable efforts to
identify, locate, and provide notice of surrender to the nonsurrendering
parent, and to file a written report identifying those efforts”—“[o]nly then,
if, despite those efforts, the identity of the non-surrendering parent remains
unknown, does the statute provide for publication in a newspaper of general
circulation.” In re Baby Boy Doe, ___ Mich App ___, ___ (2021). In this case, a
SDNL “notice, for one day, which merely generically states the newborn’s date
of delivery and hospital location, [was published] in a newspaper [circulated]
in a county in which neither parent resides”—“nothing in the language of MCL
712.7(f) can be read as providing that publication alone constitutes reasonable
efforts, or that such a nondescript and de
minimis notice as the one in this case, or one that was
published for such a brief time, should be accepted by a trial court as
adequately evidencing reasonable efforts.” In re Baby Boy Doe, ___ Mich App at ___.
UNIFORM CHILD-CUSTODY JURISDICTION
AND ENFORCEMENT ACT (UCCJEA) – JURISDICTION
“Under the
UCCJEA, a child’s initial custody determination must take place in the child’s
home state, unless the home state declines to exercise home-state jurisdiction
under the UCCJEA because another state would be a more appropriate
forum.” Veneskey v Sulier, ___ Mich App ___, ___ (2021) (quotation
marks and citation omitted). In this case, the minor child lived in North
Carolina with her mother and stepfather, and was removed to Michigan when her
mother unexpectedly died; plaintiffs (maternal grandparents) filed a petition
for guardianship in Michigan, and defendant (biological father) filed a custody
action in North Carolina. Id.
at ___. “Regardless of the time period during which [the minor child] was
removed from North Carolina and plaintiffs’ filings in Michigan to secure
guardianship and custody, . . . it did not render Michigan as [the minor
child’s] home state for purposes of plaintiffs’ and defendant’s claims for
custody”—“[i]ndeed, in the six-month time period preceding [the minor child’s]
move to Michigan and the commencement of legal proceedings here, [the minor
child] resided in North Carolina with her family.” Id. at ___. Further, “another basis for
North Carolina to acquire jurisdiction” is that Michigan “presents an
inconvenient forum for the custody determination”; in sum, “reversal of the
jurisdictional issue is not warranted” where North Carolina had a basis for
jurisdiction under the UCCJEA. Id.
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.
Milne v Milne, unpublished opinion of the Court of Appeals, released September 23,
2021 (Docket No. 355862). Because defendant speaks to the children
almost exclusively in Italian and Albanian – despite the fact that plaintiff
does not speak either language and contrary to his expressed concerns that he
is unable to effectively communicate with the children, the court did not err
in finding defendant was unwilling to facilitate and encourage a close and
continuing parent-child relationship between the child and the other parent.
Gittler v Gittler, unpublished opinion of the Court of Appeals, released September 23,
2021 (Docket No. 356034). The trial court erred when it removed safety restrictions
related to plaintiff’s mental health, which, though they might not be currently
necessary, the plaintiff had unilaterally disregarded, demonstrating she may
again fail to follow medical advice.
Cruz v Reichow, unpublished opinion of the Court of Appeals, released September 30,
2021 (Docket Nos. 356437; 356428). Where the defendant agreed to
allow plaintiff custody of their child in a domestic relations case resulting
in dismissal of the child welfare case, the Court of Appeals was deprived of
jurisdiction because the dismissal of the child welfare case created a
situation where defendant was a presumptively fit parent who agreed to a
custody arrangement and therefore there was no case or controversy for the
Court of Appeals to adjudicate.
Carpenter v Harris, unpublished opinion of the Court of Appeals, released October 14,
2021 (Docket No. 356342). The trial court did not err in rejecting
defendant’s argument that because plaintiff was the party who chose to move from
Florida to Michigan, the UCCJEA should favor jurisdiction in Florida. MCL
722.1207(2)(c) and (d) requires consideration of distance between the
states and the parties’ financial circumstances but does not require the trial
court to penalize a party for returning to a previous state. The record
demonstrated defendant was self-employed, able to work from home, and made more
money than plaintiff, and plaintiff was a dental hygienist who received only 28
hours of vacation a year and could not work remotely.
VanErdewyk v Seiler, unpublished opinion of the Court of Appeals, released November 4,
2021 (Docket No. 355719). The Court of Appeals upheld a change
granting plaintiff full legal custody because: (1) plaintiff demonstrated the
ability to both coparent and provide a more loving environment; (2) the
defendant struggled with her mental health, which caused legitimate concerns
for the court; (3) the defendant repeatedly withheld the child’s school laptop
and Zoom class schedule; and (4) the defendant had been found in contempt for
denying plaintiff’s parenting time on multiple occasions.
Echols v Kabza, unpublished opinion of the Court of Appeals, released November 9,
2021 (Docket No. 355876). Although a child’s wishes are relevant to a
lawyer-guardian ad litem’s advocacy, the child’s wishes are not controlling;
the lawyer-guardian ad litem must advocate for the child’s best interests but
also inform the trial court of the child’s wishes, even if the two are
inconsistent. Under some circumstances, a trial court may appoint an additional
lawyer to represent the child when the child’s wishes are inconsistent with the
lawyer-guardian ad litem’s position. MCL
712A.17d.
Messaros v Messaros, unpublished opinion of the Court of Appeals, released November 9,
2021 (Docket Nos. 356567; 357467). When the court, following a
motion to modify parenting time, granted an equal split of parenting time, no
change in the established custodial environment occurred because the children had
already looked to both parties for guidance, discipline, the necessities of
life, and parental comfort.
Measel v Beaudin, unpublished opinion of the Court of Appeals, released November 17,
2021 (Docket No. 356992). The trial court found an established
custodial environment with plaintiff but improperly imposed the burden of proof
(by a preponderance of evidence) on the plaintiff (the custodial parent) to prove
that the current custodial environment was in the child’s best interests rather
than imposing the burden of proof on defendant (by a clear and convincing
standard), who was requesting the change.
Roush v Roush, unpublished opinion of the Court of Appeals, released November 18,
2021 (Docket No. 357198). The plaintiff’s improved mental health and
the child’s poor academic performance did not constitute grounds to change
custody and parenting time absent a showing that a change in custody would
improve the child’s wellbeing.
Tyler v Johnson, unpublished opinion of the Court of Appeals, released November 18,
2021 (Docket No. 356688). Legitimate concerns regarding the
children’s medical care and contentious parenting time exchanges could
constitute proper cause to change custody.
Kuebler v Kuebler, unpublished opinion of the Court of Appeals, released November 18,
2021 (Docket Nos. 354327; 355934; 356641; 356709). Although there
were opinions that plaintiff’s mental health diagnosis at the time of the
divorce was no longer valid (or had never been correct), the trial court
correctly concluded that plaintiff had not shown proper cause or a change in
circumstances because, regardless of the diagnosis, her concerning behavior had
worsened.
Hoyt v Breneman, unpublished opinion of the Court of Appeals, released November 18,
2021 (Docket No. 356019). Where
a child’s elbow was injured by plaintiff when plaintiff was trying to prevent
the child from running outside toward lawn equipment, and plaintiff took the
child to the hospital and informed defendant of what happened, and the
defendant responded by preventing the plaintiff from seeing the child even
after the conclusion of a Children’s Protective Services safety plan that
uncovered no evidence of abuse, the court did not err in concluding that child
custody factor (j) regarding facilitating and encouraging a parent-child relationship
with the other parent weighed in favor of the plaintiff.
Weeks v McFarlin, unpublished opinion of the Court of Appeals, released November 18,
2021 (Docket No. 356527). As it appears that plaintiff was not
opposed to the child’s involvement in defendant’s religion – in which the child
was both schooled and attended church, and there was no evidence that plaintiff
desired to educate the child in the belief system in which plaintiff was raised,
the finding that child custody factor (b), which includes raising the child in
a religion or creed, favored defendant slightly was not against the great
weight of the evidence.
Harmon v Harmon, unpublished opinion of the Court of Appeals, released November 23, 2021
(Docket No. 357227). Where the trial court held that the established
custodial environment existed solely with plaintiff, and because a change of the
minor children’s domicile to Virginia did not alter that established custodial
environment, it was unnecessary for the trial court to assess the best interest
factors.
Borke
v Kinney, unpublished opinion of the Court of Appeals,
released November 23, 2021 (Docket Nos. 350809; 354237). An arbitrator may
modify support retroactively pursuant to the parties’ agreement.
FRIEND OF THE COURT BUREAU MEMORANDA
(November 1, 2021) Friend of the Court Alternative Dispute Resolution 2021-01
This FAQ answers common questions and clarifies policy related to the SCAO Administrative Memorandum 2019-05, Implementing Friend of the Court Alternative Dispute Resolution Plans. The FOCB will continue to update this FAQ as it receives additional questions.
MICHIGAN IV-D MEMORANDUMS (OFFICE OF
CHILD SUPPORT)
2021-022 (October 4, 2021)
Improvements to Establishing Electronic Disbursements and Revisions to Forms
This IV-D Memorandum announces Michigan State Disbursement
Unit (MiSDU) improvements to expedite the establishment of electronic
disbursements for child support recipients who submit the completed Direct Deposit Authorization (DHS-1377) and Debit Card Authorization (DHS-1371).
To support these improvements, the MiCSES 10.9.1 Release on
October 8, 2021 will remove the automatic 10-day pre-note waiting period, and a
MiCSES release in early 2022 will implement the Automatic
Electronic Funds Transfer Enrollment (AEFT) batch process.
This IV-D Memorandum also announces minor revisions to the following OCS forms:
- NSF Employer Letter #1 (DHS-1378);
- NSF Employer Letter #2 (DHS-1379); and
- Important Notice (DHS-1383).
Lastly, this IV-D Memorandum introduces a version of the
Child Support Marketing Card (DHS-Pub-139-EST) that may be used by combined FOC
and PA offices.
2021-023 (October 4, 2021) Professional
License Data Updates
This IV-D Memorandum announces the final migration of
professional license data from the License 2000 (L2K) system to the Michigan
Professional Licensing User System (MiPLUS). MiPLUS is one of the new licensing
systems for the Michigan Department of Licensing and Regulatory Affairs
(LARA).
This IV-D Memorandum introduces the licenses that LARA will
add to its professional license interface1 with the Michigan Child Support
Enforcement System (MiCSES). These licenses will be added on October 8, 2021
with the MiCSES 10.9.1 Release. The fourth and final migration from L2K to
MiPLUS will be complete with this release.
Finally, this IV-D Memorandum announces new MiPLUS secondary
license statuses that were added to MiCSES with the MiCSES 10.8.2 Release on
August 9, 2021. Although these new license statuses were added to MiCSES in
August, they will not be visible to IV-D workers until the MiCSES 10.9.1
Release.
