PUBLISHED OPINIONS
Child Custody – Considerations On Remand
In lieu of granting leave to appeal, the Michigan Supreme Court vacated in part Butters v Butters, ___ Mich App ___ (2022), because while “[t]he Court of Appeals correctly explained that, on remand, the trial court should consider up-to-date information, including the children’s current and reasonable preferences when determining whether a modification of the previous custody order is warranted,” it “erred by instructing the [circuit court] on remand to apply the best-interest factors under the clear-and-convincing evidence standard without regard to any changed circumstances that might have occurred during the pendency of th[e] appeal.” Butters v Butters, ___ Mich ___, ___ (2022) (quotation marks and citations omitted). “When nonharmless errors occur in child custody cases that necessitate a remand to the circuit court for reevaluation, those courts should address the circumstances of the child as they exist at the time of remand.” Id. at ___ (directing the circuit court on remand “to reevaluate the children’s established custodial environments based upon up-to-date information in existence at the time of the evidentiary hearing”).
Child Protective Proceedings – Marijuana Use
and Parenting Time Suspension
“[E]ven following adjudication, a parent has a
statutory right to parenting time unless it may be harmful to the child’s life,
physical health, or mental well-being.” In re Ott, ___ Mich App ___, ___ (2022). In this
case, respondent “maintains that the lower court orders suspending her
parenting time whenever she tested positive for [tetrahydrocannabinol (THC),
the psychoactive ingredient of marijuana] and requiring three consecutive clean
drug screens to resume visitations were patently invalid.” Id. at ___. Various
provisions of the Juvenile Code, the Michigan Medical Marihuana Act (MMMA), and
the Michigan Regulation and Taxation of Marijuana Act (MRTMA)—MCL 712A.13a(13),
MCL 712A.18(1)(p), MCL 333.26424(d), and MCL 333.27955(3)—“needed to be taken
into consideration before respondent’s parenting time was suspended,” and “[a]n
automatic suspension of parenting time for a positive drug screen for THC
absent any examination of and determination under these statutory provisions is
invalid.” Ott, ___ Mich App at ___. “Respondent’s use of marijuana did not
justify the denial of her parenting time with [her son] unless the court
determined that as a result of her marijuana use, parenting time, even if
supervised, may have been harmful to [her son’s] life, physical health, or
mental well-being.” Id. at ___. “Such a determination was not made in this case
at any point in time; therefore, the orders suspending respondent’s parenting
time for THC-positive drug screens and requiring three consecutive negative
drug screens before parenting time could resume were patently invalid.” Id. at
___. “Furthermore, for purposes of the MMMA and the MRTMA, respondent’s use of
marijuana did not justify the denial of her parenting time with [her son]
unless the court determined that she did not act in accordance with the MMMA or
the MRTMA, or unless the court determined that as a result of her marijuana
use, it created an unreasonable danger to [her son] that was clearly
articulated and substantiated.” Id. at ___.
Child Support – Modification
“Courts are permitted to modify child support
orders whenever changed circumstances demand, even if the child support award
was negotiated as part of a consent judgment of divorce.” Brendel v Morris, ___ Mich App ___, ___ (2023). In this
case, “the parties agreed to a one-time lump-sum child support payment in the
consent judgment of divorce,” but “[b]efore the payment could be made, the recipient
stopped exercising most of his parenting time.” Id. at ___. “This change of
circumstances warranted review of the child support award.” Id. at ___. “The
parties had anticipated sharing equal parenting time, justifying an award of
child support from [plaintiff] to [defendant] to ensure the children’s needs
were met in his care,” but “[i]n reality, [defendant] exercised minimal
parenting time.” Id. at ___. “The existing child support order diverted funds
away from the primary custodian that should be available for the children’s
care”; accordingly, “[m]odification was required to benefit the children
following this change in circumstances.” Id. at ___.
Child Custody – De Novo Hearing
Requirements
Under MCR 3.215(E)(4), “a party is entitled to
a de novo hearing to review a referee’s recommendations if the party’s
objections are filed within 21 days.” McGregor v Jones, ___ Mich App ___, ___ (2023). MCR
3.215(F)(2) provides that “[t]o the extent allowed by law, the court may
conduct the judicial hearing by review of the record of the referee hearing,
but the court must allow the parties to present live evidence at the judicial
hearing,” and MCR 3.215(F)(2)(d) provides that the court may, in its
discretion, “impose any other reasonable restrictions and conditions to
conserve the resources of the parties and the court.” McGregor, ___ Mich App at
___ (quotation marks omitted). In this case, the trial court “imposed an
additional requirement that the objecting party request a copy of the
transcript of the referee hearing from the court recorder and submit the
transcript to the court prior to the de novo hearing.” Id. at ___. “The trial
court interpreted MCR 3.215(F)(2)(d) as authorizing it to deem a party’s right
to object to the [Friend of the Court] referee’s recommendations and receive a
de novo hearing forfeited if the party did not submit a transcript of the
referee proceedings prior to that hearing.” McGregor, ___ Mich App at ___.
However, “[n]othing in the language of the court rule indicates that it
authorizes the court to impose additional requirements a party must fulfill
before being entitled to a de novo hearing[.]” Id. at ___. “Having timely filed
his objections to the referee’s recommendations, plaintiff was entitled to have
a judicial hearing before the trial court regarding those objections, and the
trial court exceeded its authority by declaring this right forfeited.” Id. at
___.
Stepparent Adoption – Substantial Compliance
With Child Support Order
“The purpose of MCL 710.51(6) is to foster
stepparent adoptions in families where the natural parent had regularly and
substantially failed to support or communicate and visit with the child and
refuses to consent to the adoption.” In re NRC, ___ Mich App ___, ___ (2023)
(quotation marks and citation omitted). “[U]nder MCL 710.51(6)(a), a parent
substantially complies with a child support order when they have made a considerable
quantity of the payments required by the order.” NRC, ___ Mich App at ___. “The
statutory period to determine whether a respondent substantially complied with
a support order is a period of 2 years or more before the filing of the
petition.” Id. at ___ (quotation marks and citation omitted). “The evidence in
this case shows [respondent] made many of his child support payments, that he
often caught up with arrearages by making lump sum payments, and at the time
the petition was filed his arrearage totaled only $146 ”—“[t]his small
arrearage in relation to the thousands of dollars in child support [respondent]
paid in the preceding two years is insufficient to show [he] failed to
substantially comply with his child support obligation.” Id. at ___.
Accordingly, “the trial court did not err in finding [respondent] substantially
complied with the order of child support.” Id. at ___.
Paternity
Act – Proper Parties
“[A] proper action to determine paternity
should be brought under and governed by the provisions of the Paternity Act.” Black v
Cook, ___ Mich App ___, ___ (2023) (quotation
marks and citation omitted). “This case involves a plaintiff who seeks to
establish that he is the father of a minor child born out of wedlock, where the
child’s mother is now deceased.” Id. at ___. “In the trial court, plaintiff
sought to prove he was the biological father of [the decedent’s] child by
filing an action under the Paternity Act,” and “[i]n the suit, plaintiff named
the decedent . . . and the guardians of the minor child as defendants.” Id. at
___. “The trial court concluded that because [the child’s mother] was deceased,
she was not a proper party defendant, that the guardians could not be
defendants in a paternity action, and that the circuit court was not the
correct forum to bring this action.” Id. at ___. However, “[u]nder the Paternity
Act, the Legislature vested the circuit court with the power to determine the
paternity of a child born out of wedlock”; “[a]ccordingly, the circuit court
had subject-matter jurisdiction over this paternity action and the circuit
court was the proper forum in which to file an action under the Paternity Act.”
Id. at ___. And while “no provision of the Paternity Act states or implies that
a deceased mother may be sued in an action brought under the Paternity Act,”
and “[t]he Paternity Act does not address . . . whether a guardian may properly
be named as a defendant in an action under the Paternity Act,” “[t]here does
not appear to be any law precluding a plaintiff in a Paternity Act case from
bringing an action against a minor child to determine the paternity of a
putative father to such child.” Id. at ___. Accordingly, the trial court erred
in dismissing “the case in its entirety because it should have permitted
plaintiff an opportunity to add an appropriate defendant so that plaintiff may
proceed with the determination of plaintiff’s paternity of the minor child.” Id.
at ___.
Due
Process – Late-Identified Parent and Child Placement
“[A] fit
parent has a constitutional right to place his child with anyone he deems
appropriate”; however, “[w]hen a child has been placed into care by an
unchallenged order of the court, the state has a legitimate and important
interest in protecting the child’s health and safety.” In re Dixon, ___ Mich
App ___, ___ (2023). “When vindication of an unadjudicated parent’s custodial
right will necessarily involve a court ordered custodial change and the
elimination of state custody, the state’s interest permits the maintenance of
continued, temporary placement while an investigation is conducted to ensure
the appropriateness of the new placement.” Id. at ___. The proper inquiry for
“procedural protections [that] must be afforded to protect the constitutional
right of a late-identified parent to select a relative or fictive kin placement
when the child is already in the care and custody of the state” weighs the
interests at stake under a due process framework. Id. at ___. In this case,
“[f]ather’s incarceration and his absence at the child’s birth put him in the
unenviable position of being unable to directly place his child without [Department
of Health and Human Services (DHHS)] input,” and “[w]hen he was able to direct
[the child’s] placement, the child was 5½ months old and living in a stable
foster family placement.” Id. at ___. “[T]he DHHS had determined that
[respondent’s significant other] was not an appropriate placement for [the
child],” and “[w]hen the court allowed father additional time, he could name no
other possible placement” for the child, which left the child “without proper
custody or guardianship, supporting jurisdiction.” Id. at ___ (quotation marks
omitted). “[A]n abrupt removal of [the child] from his foster care placement
would have triggered a substantial risk of emotional harm to the child, even if
the proposed placement were ultimately determined to be fit,” and “[t]he court
and the DHHS had an interest in protecting him from an unsafe and emotionally
damaging custodial transfer, which meant conducting some investigation into the
appropriateness of father’s proposed placement.” Id. at ___. “[U]nder the
circumstances presented here, father’s right to control the custody and care of
his child must yield, at least temporarily, to the state’s interest in
preventing upheaval for [the child], a vulnerable child who has been in care
with the same foster family for nearly two years.” Id. at ___. In sum, “the
court did not err by initially refusing to transfer [the child’s] custody,” and
“the court ultimately properly took jurisdiction over the child in relation to
father.” Id. at ___ (remanding for the DHHS and court to further investigate
placement with father’s significant other).
Child
Custody – Department of Licensing and Regulatory Affairs (LARA) Documents and
Public Records Hearsay Exception
“MRE
803(8) is narrow with respect to the kinds of public records and reports that
may be admitted under this rule.” Kuebler v Kuebler, ___ Mich App ___, ___
(2023). “In this case, the LARA documents admitted by the trial court contain a
finding of facts by the disciplinary subcommittee that the allegations
contained in a complaint against [a court-appointed psychologist]—alleging
professional misconduct by her in relation to her evaluations in this case and
others—were true.” Id. at ___. “LARA is specifically charged with investigating
allegations of disciplinary misconduct,” and “[i]ts factual findings made
during such an investigation, as set forth in the LARA judgment at issue in
this case, are not admissible under MRE 803(8).” Kuebler, ___ Mich App at ___.
Accordingly, “[t]he trial court committed clear legal error, and thereby abused
its discretion, by relying on the public records exception to admit these
documents over defendant’s hearsay objections.” Id. at ___. Additionally, “the
LARA documents contain inadmissible hearsay-within-hearsay,” which “further
supports that the trial court erred by admitting the LARA documents into
evidence over defendant’s hearsay objections.” Id. at ___. Child Custody –
Domestic Violence Opinion Testimony “[P]roceedings for the modification of
child custody provisions generally require new evidence that was not available
in the divorce action.” Kuebler v Kuebler, ___ Mich App ___, ___ (2023)
(quotation marks and citation omitted). In this case, “notwithstanding
allegations of domestic violence, there was no finding of domestic violence,
and absent new evidence, the divorce judgment is final and conclusive as to
this question.” Id. at ___. “Plaintiff’s allegations of domestic violence
against defendant relate to events that occurred long before the divorce
judgment,” and “rehashing plaintiff’s old allegations . . . added nothing to
the determination of the children’s best interests or the other required
findings under the Child Custody Act.” Id. at ___. “Moreover, plaintiff’s
primary evidence that she was a victim of domestic violence came from her
therapist, . . . who testified that plaintiff believed that she was a victim of
domestic violence, and that plaintiff was not lying.” Id. at ___. However, it
is “blackletter law that an expert cannot opine that complainant was a battered
woman, may not testify that defendant was a batterer or that he is guilty of
the crime, and cannot comment on whether a complainant was being truthful.” Id.
at ___ (cleaned up). Accordingly, “the trial court committed clear legal error,
and thereby abused its discretion, by reopening the domestic-violence question
and allowing plaintiff to present inadmissible evidence on this topic.” Id. at
___.
Child
Custody – Established Custodial Environment and Burden of Proof
“Whether
an established custodial environment exists dictates the evidentiary burden
applicable to the parent seeking to alter a child’s environment”—“when there is
an established custodial environment with both parents, neither parent’s
established custodial environment may be disrupted except on a showing, by
clear and convincing evidence, that such a disruption is in the children’s best
interests.” Kuebler v Kuebler, ___ Mich App ___, ___ (2023) (quotation marks
and citation omitted). In this case, “[a]t the time of the evidentiary hearing,
defendant had sole legal custody and the parties shared joint physical custody,
with plaintiff receiving five days out of each 14-day period.” Id. at ___.
“Plaintiff sought to substantially modify the children’s established custodial
environment with defendant; she asked for a 50/50 split of parenting time, and
she also sought joint legal custody.” Id. at ___. “These proposed changes were
not merely a request to change parenting time; they had the effect of altering
custody, and as a result, the clear and-convincing-evidence standard of proof
applied.” Id. at ___. “[H]aving concluded that the children have an established
custodial environment with both parents, the trial court committed clear legal
error by failing to apply a clear-and-convincing-evidence standard to plaintiff’s
motion to modify defendant’s sole legal custody.” Id. at ___.
Child
Custody – Guardian Ad Litem (GAL) Continued Appointment
“MCL
722.27(1)(d) allows for the use of a GAL,” but “it does not identify any
specific qualifications that a GAL must possess to make recommendations in
custody disputes.” Kuebler v Kuebler, ___ Mich App ___, ___ (2023). In this
case, “defendant was free to question the GAL about her qualifications and to
challenge the GAL’s credibility on this basis, but he has not shown that the
GAL’s qualifications, or lack thereof, warrant her removal.” Id. at ___. “With
regard to bias, a GAL’s bias against a parent or other findings that a GAL was
not functioning as a neutral party to aid in the resolution of disputes would
potentially provide a basis for terminating the GAL,” but “[n]one of what
defendant describes . . . appears to evince that the GAL was not acting as a
neutral party.” Id. at ___. “She was not, for example, inflaming the custody
dispute, nor had she become so personally enmeshed as to preclude her from
assisting the parties in resolving disputes.” Id. at ___. Because defendant has
not “demonstrated that the GAL was so clearly biased against him as to
necessitate her removal,” he “has not shown that the trial court abused its
discretion by declining defendant’s request to terminate the GAL’s appointment
and instead appointing her for another year.” Id. at ___.
Child
Custody – Guardian Ad Litem (GAL) Reports and Catch-All Hearsay Exception
“[W]hen a GAL is appointed, the GAL may offer
recommendations to be considered by a trial court, but such recommendations
remain subject to the rules of evidence, meaning that a GAL report containing
hearsay may not be admitted into evidence over proper objection.” Kuebler v
Kuebler, ___ Mich App ___, ___ (2023). “In this case, it is undisputed that the
GAL’s reports constituted hearsay to the extent they included statements from
the GAL’s interviews and conversations with a variety of people, including the
children, the children’s paternal grandfather, plaintiff’s therapist, the
children’s therapist, the parties, and the parties’ lawyers.” Id. at ___. “The
trial court acknowledged that the reports were hearsay, but admitted the
reports under the ‘catch-all exception’ to the hearsay rule, MRE 803(24)”;
however, “[t]here is . . . nothing particularly demonstrative of
trustworthiness in a GAL’s report or in the hearsay-within-hearsay that a GAL’s
report contains, merely because the report was prepared by a GAL at the trial
court’s direction.” Kuebler, ___ Mich App at ___. Accordingly, “[t]he trial
court committed clear legal error, and thereby abused its discretion, by admitting
the GAL’s reports into evidence over defendant’s proper hearsay objections.” Id.
at ___.
Child
Custody – Joint Legal Custody
“In order for joint custody to work, parents
must be able to agree with each other on basic issues in child rearing—including
health care, religion, education, day to day decision-making and discipline—and
they must be willing to cooperate with each other in joint decision-making.” Kuebler
v Kuebler, ___ Mich App ___, ___ (2023) (quotation marks and citation omitted).
“In this case, in changing legal custody from defendant’s sole legal custody to
joint legal custody, the trial court found, by a preponderance of the evidence,
that the parties were able to agree and communicate regarding the children’s
needs.” Id. at ___. However, “[o]f the issues that the parties have actually
discussed and attempted to decide together in the last year, they have not
reached a significant decision yet without the aid of third parties,” and they
“also endlessly disagreed about issues related to extracurricular
activities[.]” Id. at ___. “On the whole, considering the entire record, the
evidence heavily preponderates against the trial court’s conclusion that the
parties are capable of communicating and cooperating to make joint decisions”;
accordingly, the trial court “abused its discretion by changing custody from
sole legal custody to joint legal custody.” Id. at ___.
Child
Custody – Parent-Child Relationship Best Interest Factor
“Factor
(j) relates to the willingness and ability of each of the parties to facilitate
and encourage a close and continuing parent-child relationship between the
child and the other parent or the child and the parents.” Kuebler v Kuebler,
___ Mich App ___, ___ (2023) (quotation marks and citation omitted). “In
effect, factor (j) favors parents who facilitate the relationship of their
children with the other parent because it is presumed to be in the children’s
best interests to have a strong relationship with both parents”; “however, this
presumption can be overcome with evidence that interference with the other
parent’s parental relationship is reasonably necessary for the child’s safety,
in which case, those reasonable acts cannot be counted against a parent under
factor (j).” Id. at ___ (cleaned up). “In this case, the trial court concluded
that factor (j) slightly favored plaintiff,” but those findings “are against
the great weight of the evidence for several reasons.” Id. at ___. “First, the
trial court erred by criticizing defendant for supervising plaintiff’s
videoconference parenting time visits during COVID-19,” because “[d]efendant
did nothing improper and did not interfere with plaintiff’s relationship with
the children, by supervising Zoom visits as authorized by the court.” Id. at
___. “Second, the trial court’s findings regarding domestic violence and
defendant’s ‘power’ are improper” because “[t]hese issues were not before the
court and should not have been used in the assessment of factor (j).” Id. at
___. “Third, when evaluating factor (j), the trial court erred by rewriting
history and ignoring the law of the case with regard to the unreasonableness of
plaintiff’s conduct.” Id. at ___. “Fourth, the trial court appeared to fault
defendant for [the original judge’s] entry of orders restricting plaintiff’s
parenting time and [the] denial of plaintiff’s various motions to modify
parenting time,” “wholly ignor[ing] the wrongfulness of plaintiff’s conduct in
this case and the sound basis for defendant’s concerns.” Id. at ___. “On the
whole, the trial court’s conclusion that factor (j) favored plaintiff, even
slightly, was resoundingly against the great weight of the evidence[.]” Id. at
___.
Child
Custody – Proper Cause or Change of Circumstances
“The Child
Custody Act expressly recognizes that circumstances relevant to a child’s best
interests can change, and it specifically allows for modification of custody
and parenting time upon a showing of proper cause or change in circumstances.” Kuebler
v Kuebler, ___ Mich App ___, ___ (2023). In this case, defendant “argues that
doctrines such as res judicata, collateral estoppel, or the law of the case
should preclude the trial court from reevaluating plaintiff’s mental health or
concluding that plaintiff showed proper cause or a change in circumstances.” Id.
at ___. But “[t]o apply res judicata or collateral estoppel to preclude
consideration of changes in circumstances or new evidence relevant to a child’s
best interests in the child custody context would subvert the intent of the
Legislature as expressed in MCL 722.27(1)(c)[.]” Kuebler, ___ Mich App at ___.
Similarly, “the law-of-the-case doctrine does not apply to a subsequent motion
making the same request when, as in this case, the facts have materially
changed.” Id. at ___. Given the changes demonstrated by plaintiff, “the trial
court’s findings of proper cause or a change of circumstances were not against
the great weight of the evidence.” 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.
Napora v Pierson, unpublished
opinion of the Court of Appeals, released December 22, 2022 (Docket #358637).
When the original 2017 record did not follow
the requirements for deviating from the Michigan Child Support Formula, the
trial court could find that the 2017 order was a deviation, but erred when it
relied on the previous deviation without satisfying the legal requirements for
a deviation (MCL 552.605(2)) in issuing its 2020 order.
Leonard v Leonard, unpublished opinion of the Court of Appeals,
released December 22, 2022 (Docket #359382).
The trial court had subject matter
jurisdiction over the child’s custody notwithstanding defendant’s argument that
the plaintiff was not entitled to a presumption of paternity because the parties’
marriage was void.
Bryant v Soden, unpublished opinion of the Court of Appeals,
released December 22, 2022 (Docket #361915).
The trial court erred when it determined the parties’
child had an established custodial environment with both parents without
stating why, did not state the standard of proof it was applying, and in not
considering whether the parenting time order would alter the established
custodial environment.
Rosin v Rosin, unpublished
opinion of the Court of Appeals, released January 19, 2023 (Docket #s 357142;
358764).
The trial court erred when it reduced spousal
support by 50% without tying the reduction to the spousal support factors it
relied on to support the reduction.
Johnson v Johnson, unpublished
opinion of the Court of Appeals, released January 19, 2023 (Docket #360783).
The trial court correctly imputed income from
the defendant’s deferred social security benefits in modifying spousal support.
Tas v Kaye,
unpublished opinion of the Court of Appeals, released January 26, 2023 (Docket
#361446).
The trail court erred when it entered a
custody order without first determining whether the order altered the child’s
established custodial environment. .
Tanis v Wiggers,
unpublished opinion of the Court of Appeals, released January 19, 2023 (Docket
#361989).
Allegations in a motion to change custody that
revolve around absences due to military service may not be considered to
support a change custody.
Keessen v Keessen,
unpublished opinion of the Court of Appeals, released January 26, 2023 (Docket
# 359074).
The trial court did not err in calculating defendant’s
income at $222,000, without imputing a management fee of 10% when the
distribution would have included the management fee.
Hawes v Cromie, unpublished
opinion of the Court of Appeals, released January 26, 2023 (Docket # 360951).
When the defendant failed to facilitate
plaintiff’s relationship with the child and was critical of plaintiff but plaintiff
was fixated on denigrating defendant (for example, the 2018 custody evaluation
pointed out that plaintiff had “unrelenting criticisms of and complaints about”
defendant that were “so intense and pervasive that he had nothing positive to
say about her as a parent or as a person.”) but plaintiff “was not as intensely
critical of” defendant the trial court’s finding that factor (j) weighed
equally was therefore not against the great weight of the evidence.
Marsh v Harness, unpublished
opinion of the Court of Appeals, released January 26, 2023 (Docket # 362204).
The trial court’s finding that factor (c) -
the capacity and disposition of the parties involved to provide the child with
food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs
- favored both parties was not against the great weight of the evidence because
although defendant had not paid child support, hospital bills, or other bills
associated with the minor child at the time of the hearing, his testimony that
he brought diapers, toys, and clothing to parenting time and the fact that
plaintiff’s decision to exclusively breast-feed the minor child precluded
defendant from providing him with food, supported defendant’s disposition to
provide support.
Oulai v Guidy-Oulai, unpublished
opinion of the Court of Appeals, released February 2, 2023 (Docket # 358385).
The trial court’s spousal support order was
vacated because the trial court did not properly “consider the parties’
significantly disparate incomes and the nonliquid, non-income-producing nature
of the assets awarded to defendant” and in “ascribing to defendant a lesser
standard of living during the marriage because plaintiff spent more” because no
authority supports the theory that a person who uses more marital resources has
claim to a higher standard of living.
Lynch v Lynch, unpublished
opinion of the Court of Appeals, released February 16, 2023 (Docket # 359437).
The trial court errored when it awarded
attorney fees to defendant without making findings concerning either party’s
ability to pay or whether a party had incurred expenses as a result of the
other’s unreasonable conduct.
People v. Broekhuizen,
unpublished opinion of the Court of Appeals, released February 16, 2023 (Docket
# 359482).
The trial court was under no obligation to
instruct the jury that an element of the defense of impossibility in a felony
nonsupport case is a defendant’ s religious belief that his religion precluded
him from entering into a civil contract with a secular court by recognizing an
order from the State of Michigan directing him to child support.
Mcgregor v Jones,
unpublished opinion of the Court of Appeals, released February 16, 2023 (Docket
# 361447).
MCR 3.215(F)(de novo hearing after a referee
hearing) does not allow the trial court to require a party to obtain a
transcript as a condition of holding the de novo hearing.
Khurana v. Khurana,
unpublished opinion of the Court of Appeals, released March 2, 2023 (Docket # 360714).
Defendant admitted that he deliberately
ignored correspondence that would have informed him that the divorce action was
commencing, and that plaintiff had moved for a default and default judgment
because he thought it was a bill; defendant had the responsibility to respond
to the litigation in the time prescribed by the court rules and his mistaken
belief concerning the nature of the mail does not demonstrate a reasonable
excuse for failing to comply with the court rules.
McBride v. Mathews,
unpublished opinion of the Court of Appeals, released March 2, 2023 (Docket # 361317).
The Court concluded the trial court erred in
finding plaintiff in contempt for failing to physically remove her unwilling
12-year-old daughter from the car for a court-ordered return to
defendant-father when the evidence supported that mother found herself in an
emotionally fraught situation, forced to choose between compelling her
unwilling 12-year-old daughter to a place where she had been physically
punished, and allowing the child to remain in a place where she felt safe.
Lorenz v Lorenz,
unpublished opinion of the Court of Appeals, released March 9, 2023 (Docket #s 359832;
361127).
It was not necessary that the originating
jurisdiction’s custody order be decided by best-interest factors similar to
Michigan’s as a prerequisite to registration of that order under the UCCJEA’s
requirement that the order must conform to UCCJEA’s jurisdictional standards.”
Martinez v Martinez, unpublished
opinion of the Court of Appeals, released March 16, 2023 (Docket # 359759).
Although the court sentenced the defendant to four
days of jail without purge conditions, the Court of Appeals determined the
contempt was civil because it followed an earlier finding of contempt that
could have avoided any further sanctions had the defendant engaged in behavior
to implement the parenting time order.
Onyejekwulum v Onyejekwulum, unpublished
opinion of the Court of Appeals, released March 16, 2023 (Docket #361167)
The trial court’ erred when it modified the parties’
rights to claim the federal child tax credits without finding there was a
change in circumstances to modify child support and engaging in the fact-finding
required by law governing child support modifications.
Pierce v. Deglopper, unpublished
opinion of the Court of Appeals, released March 16, 2023 (Docket #362243)
Multiple courts can have concurrent
jurisdiction in situations related to the custody of a child as compared to
child protective proceedings and the plaintiff did not show that the
court—which had continuing jurisdiction over this custody dispute since
2014—was divested of jurisdiction by the filing of a child protective petition.
Ali v. Ali, unpublished
opinion of the Court of Appeals, released March 23, 2023 (Docket #360276)
The court reversed the trial court's issuance
of a temporary support order that deviated from the Michigan Child Support
Formula, noting that the trial court did not follow procedural requirements to
either base the support amount in the MCSF or explain the deviation and
remanded for a determination based on procedures set forth in MCL 552.605(2)(a)
through (d).
McCoury v. McCoury, unpublished
opinion of the Court of Appeals, released March 23, 2023 (Docket # 362045)
The trial court could not enter an order for
child support without either following the Michigan Child Support Formula or justifying
a deviation from it.
Matthewson v Mills, unpublished opinion of the Court of Appeals,
released March 23, 2023 (Docket # 362798)
The trial court erred in allowing information from
its own inquiry into the plaintiff’s partner’s involvement with the district
court’s drug court program as a recovery coach because that information was not
the type of record or information the court could take judicial notice of as
being in its own records or common knowledge, but rather information that could
have been developed based on facts and opinion outside the case.
Sova v Mckinnon,
unpublished opinion of the Court of Appeals, released March 23, 2023 (Docket #
362815)
When the child has an established custodial
environment with both parents, the court must not compare the parties’
proposals against each other, but, rather against the status quo; if neither
party can establish by clear and convincing evidence that the party’s proposal
is in the best interests of the child. the trial court is not obligated to
choose from these two competing proposals but is free to to construct its own
custody arrangement.
Fox v. Sims,
unpublished opinion from the Michigan Court of Appeals, released March 30, 2023
(Docket # 360165)
To set aside a consent judgment, defendant
must establish that he was in fear of serious injury to his person, reputation,
or fortune, and his fear was induced by unlawful action, but there was no
indication that plaintiff or her counsel, acted unlawfully by refusing to
postpone the trial and, while their refusal to consent to postponing the trial
added pressure to settle, standing alone, pressure to settle is not coercion.
Sines v. Sines,
unpublished opinion by the Michigan Court of Appeals, released on March 30,
2023 (Docket # 362529)
The trial court could determine whether proper
cause to change custody existed without holding an evidentiary hearing when
facts are not in dispute or the court accepts the facts alleged in the
complaint as true for purposes of determining whether further proceedings are
necessary.
Johnson v Johnson,
unpublished opinion by the Michigan Court of Appeals, released on April 6, 2023
(Docket # 361277)
The trial court should have considered the children’s
reasonable preferences concerning custody of children aged 12 and 15.
Mayer v. Gregerson, unpublished
opinion by the Michigan Court of Appeals, released April 13, 2023 (Docket
#360835
The plaintiff’s appeal from an order enforcing
an order to pay defendant’s attorney’s fees was untimely with respect to the order
awarding the fees and the order awarding the fees was not subject to challenge
in an appeal of the subsequent orders.
Hotchkiss v. Moore,
unpublished opinion by the Michigan Court of Appeals, released April 13, 2023
(Docket # 362370)
The death of the child’s mother was a
substantial change in circumstances sufficient to allow the court to address
custody between the child’s grandparents who had exercised the plaintiff’s
directives concerning custody and the defendant.
Morin v Fry, unpublished
opinion by the Michigan Court of Appeals, released April 13, 2023 (Docket #
362619)
Even if the custody factors did not overall favor
the child’s mother, the trial court should look to the child’s best interests
which were better served by awarding custody to the mother.
Mathis v. Mathis,
unpublished opinion by the Michigan Court of Appeals, released April 13, 2023
(Docket # 363661)
The court found that the trial court committed
clear legal error in failing to first determine whether the parties’ child had
an ECE with one or both of them before it analyzed MCL 722.23 factors, and that
remand was required as a result, but the trial court’s findings and conclusions
as to certain best-interest “factors (d), (g), and (j) were insufficient to
facilitate appellate review.”
Hicks v. Miller,
unpublished opinion by the Michigan Court of Appeals, released April 20, 2023
(Docket # 362085)
There is no right to appointed counsel in
custody proceedings.
Bates v. Arkwright,
unpublished opinion by the Michigan Court of Appeals, released April 20, 2023 (Docket
# 362526)
The record demonstrated the child had an
established custodial environment with plaintiff because she resided with plaintiff,
was raised by plaintiff her entire life,
plaintiff served as her primary caretaker ensuring that all of her needs were
met, including food, clothing, housing, and medical care, enrolled her in
school, engaged in her educational activities, and extracurricular activities
when they were affordable and took her to church, while defendant only visited her
in Michigan 13 to 14 times, and interacted with her only during the monthly,
scheduled parenting visits.
Mayo v. Maskell,
unpublished opinion from the Michigan Court of Appeals, released May 11, 2023
(Docket # 359026)
When the parties were of similar age and had
no physical ailments preventing them from working., shared no children, lived
separate lives over the past 7 years of the 14-year marriage, and defendant did
not work after entering the marriage and did not attempt to find gainful
employment when she started living separately from plaintiff or when plaintiff
filed for divorce, the trial court did not err in declining to award spousal
support.
Glowacki v. Glowacki,
unpublished opinion from the Michigan Court of Appeals, released May 11, 2023
(Docket # 359084; 361040)
The disparity in earning capacity between the
parties weighed strongly against equally apportioning the parties’ substantial tax
liability and was unfair and inequitable when, although plaintiff had at one
point earned $225,000 annually at a prior job the trial court did not compare
plaintiff’s earning capacity to the earning capacity of defendant, who was
earning $1 million annually from his successful medical practice.
Waters v. Stalter,
unpublished opinion from the Michigan Court of Appeals, released May 11, 2023
(Docket # 363955)
it was incumbent on defendant to show that the
disruptions to the child’s life from a change in domicile would be outweighed
by improvements to the child’s life and the trial court did not err in finding
she did not do so considering there is value in maintaining a child’s bond with
extended family and ties to an existing location, and moving to Texas could break the existing
bond the child has with her family in Michigan.
COURT FORM REVSIONS AND NEW FORMS- FRIEND OF
THE COURT
The State Court Administrative Office (SCAO)
has revised various Friend of the Court forms and created FOC 30h, Notice of
Registration of Convention Support Order (Hague), and FOC 89a, Order Regarding
Custody and Parenting Time Following Alternative Dispute Resolution. See the
March 1, 2023 SCAO Memorandum for an
explanation of the changes to each form, along with instructions on use of
previously approved versions and a copy of the forms with the changes
highlighted.
FRIEND OF THE COURT BUREAU (FOCB) MEMORANDA
2022-04 Request to Search Central Registry (Wyatt’s
Law)
This memo revises the FOCB October 31, 2022,
memo to reflect updated MDHHS policies. Public Act 64 of 2022 (Wyatt’s Law)
effective November 1, 2022 provides that the Michigan Department of Health and
Human Services (MDHHS) will maintain a data base (central registry) of the
individuals who are confirmed to have engaged in, or who are convicted of,
offenses listed in Section 7j of the Child Protection Law, MCL 722.621 et
seq. MCL 722.627j provides, in part: (2)
The department must classify a confirmed case of methamphetamine production,
confirmed serious abuse or neglect, confirmed sexual abuse, or confirmed sexual
exploitation, as a central registry case.
(3) In addition to a case classified under subsection (2), a court in
this state entering an order of conviction for a violation of [section 136b of
the Michigan penal code, 1931 PA 328, MCL 750.136b [child abuse], a conviction
for a violation of chapter LXXVI of the Michigan penal code, 1931 PA 328, MCL
750.520a to 750.520o [criminal sexual conduct] involving a minor victim, a
conviction for a violation of section 145c of the Michigan penal code, 1931 PA
328, MCL 750.145c, [child pornography] and any conviction involving the death
Requests to Search Central Registry (Wyatt’s Law) November 16, 2022 Page 2 of a
child must request that the conviction be classified as a central registry case
by the department.
MICHIGAN IV-D MEMORANDUMS (OFFICE
OF CHILD SUPPORT)
|
Updates to the Review and Modification –
Incarcerated NCPs Report (RV-200) |
Michigan law requires abatement of support for
payers incarcerated 180 days or more. In December 2021, the child support
program began using the Review and Modification – Incarcerated NCPs Report
(RV-200) to identify payers who were eligible for abatement. OCS initially
developed the RV-200 to identify payers in need of a support review because the
payer was or would be incarcerated for 180 consecutive days or more. Based on
feedback from IV-D workers, OCS decided to modify the RV-200 to serve as an
abatement report. This IV-D Memorandum
introduces a new name and new functionality for the RV-200. The RV-200 has been
renamed RV-200 Incarcerated NCPs Report and will function as an abatement
report that will help FOC offices comply with the Michigan abatement law. It
will not be used to identify payers who need a support review because they are
incarcerated. The revised RV-200 will
be implemented with the Child Support 22.4 Release on December 9, 2022.
The report will identify:
- Payers whose support has been or will be automatically abated; and
- Cases where more investigation may be necessary to determine if abatement is appropriate.
45 Code of Federal Regulations (CFR)
303.8(b)(2) requires the IV-D program to initiate a review of an order when a
payer will be incarcerated 180 days or more. OCS developed the RV-200 in 2019,
before Michigan’s abatement law was enacted.
Ref: Section 3.44, “Abatement,” of the
Michigan IV-D Child Support Manual for more information on abatement and the
history of the RV-200 report.
This IV-D Memorandum describes:
- The new functionality of the RV-200 report;
- The new fields and data elements included in the report;
- The reorganization of the report; and
- How IV-D offices can learn more about working and managing the report. OCS will revise Section 3.44 of the Michigan IV-D Child Support Manual to reflect changes to the RV-200 in a future update.
|
12/5/2022 |
Increase to the Client Participation Payment
(CPP) Beginning in January 2023 |
This IV-D Memorandum discusses the State of
Michigan’s increase to the CPP (also known as the “pass-through payment”).
Beginning in January 2023, OCS will pass through the full amount of current
child support collections to families that are receiving Family Independence
Program (FIP) cash assistance. This
memorandum also announces a one-time Client Participation Payment Letter
(OCS1400) that OCS will mail to custodial parties (CPs) to notify them about
the passthrough of their current support while they are receiving FIP benefits.
This letter will be mailed with the Child Support 22.4 Release on December 9,
2022.
|
12/5/2022 |
International Central Authority Payment
(CAP) Program Pilot |
This IV-D Memorandum announces the Michigan
Office of Child Support’s (OCS’s) participation in a pilot of the federal
Office of Child Support Enforcement’s (OCSE’s) Central Authority Payment (CAP)
Program. The CAP Program will allow state child support agencies to send
electronic funds transfer (EFT) payments to foreign countries that no longer
accept paper checks.
2022-019
12/22/2022
On-Site Review Requirements for Contractors With Access to Federal Tax
Information (FTI)
This IV-D Memorandum introduces policy on the
Internal Revenue Service (IRS) - mandated on-site review requirements for
contractors and subcontractors that receive or have access to FTI. This
memorandum explains how the Michigan IV-D program will comply with these
requirements.
2023-001 1/6/2023
Rescission of Temporary Policy Allowing IV-D Staff to Email Unencrypted
Documents to Case Participants for eSignature
The Michigan IV-D Program is discontinuing its
temporary policy to allow IV-D staff to email unencrypted documents to case
participants for electronic signature (eSignature) under certain conditions.
The policy will be discontinued on February 3, 2023. This IV-D Memorandum obsoletes policy in
Section F, “Emailing Documents for eSignature” in IV-D Memorandum 2021-005,
Options for Electronic Signatures and Introduction of OneSpan Sign Software.
IV-D Memorandum 2021-005 will remain available on mi-support until it is
obsoleted in full by a future update to eSignature policy.
2023-002 1/9/2023 Translation Information Added to
Contact Letters and Updates to Understanding Child Support: A Handbook for
Parents (OCSPAMP and DHS-Pub-748)
This IV-D Memorandum announces revisions to
the following OCS contact letters:
- First Customer Contact Letter (OCS0015);
- Final Customer Contact Letter (OCS0025);
- Customer Contact Letter (OCSCONT);
- Customer Contact Letter 1 (OCSCONT1);
- Customer Contact Letter 2 (OCSCONT2);
- Notice of Continued Eligibility (OCS4636);
- Noncooperation Notice (OCS1252) (both the Prosecuting Attorney [PA] and OCS versions);
- Noncooperation Notice (OCS1252A) (MiCSES-generated1); and
- Cooperation Notice (OCS1253) (both the PA and OCS versions).
OCS has added information to each of the
letters above for participants who speak no English or limited English. This
information includes: (1) A phone number that participants can call to talk to
an interpreter; and (2) A link to a website where participants can find sample
versions of the letter translated into Spanish and Arabic.
OCS has added a sample version of each contact
letter translated into Spanish and Arabic to the Policy, Forms and Publications
page of the MDHHS-OCS2 public website. This IV-D Memorandum also announces
revisions to the publication Understanding Child Support: A Handbook for
Parents. It is available as the OCSPAMP, which is generated by MiCSES; and
DHS-Pub-748, a handbook that is available in a printed and electronic format.
2023-003 2/2/2023
Availability of Customer Service Training in the OCS Learning Management
System (LMS)
OCS has purchased an online customer service
training course that is now available in its Learning Management System (LMS).
This course aligns with the Michigan Child Support Program’s operating
principles to support parents, be service-oriented, and win- rather than
enforce - compliance. The training is specific to child support, so it will be
especially helpful to IV-D staff in certain customer service situations. IV-D
staff may take this training to fulfill their yearly customer service training
requirement for the Contract Performance Standards (CPS) Training
Measures. OCS conducted a pilot of the
online course to gauge its relevance and value. The results from a survey of
the training participants illustrated its broad support, acceptance, and value.
In fact, all survey respondents indicated that they would recommend the
training to other staff.
|
3/6/2023 |
Updates to Professional License Information |
This IV-D Memorandum announces a new interface
between the Michigan Child Support Enforcement System (MiCSES) and the Bureau
of Construction Codes (BCC) system. BCC is one of the licensing systems for the
Michigan Department of Licensing and Regulatory Affairs (LARA). This IV-D
Memorandum introduces the BCC license types and secondary statuses that LARA
will add to its professional license interface with MiCSES. This license data
will be added with the Child Support 23.1 Release on March 10, 2023. Additionally, this IV-D Memorandum introduces
license types that previously migrated from the License 2000 (L2K) system to
the Michigan Professional Licensing User System (MiPLUS) but were not visible
to IV-D workers in MiCSES. These license types will be available in MiCSES with
the 23.1 release.
|
3/6/2023 |
Modifying Support After Incarceration
Abatement |
This IV-D Memorandum updates policy related to
modifying support after abatement due to a payer’s release from incarceration.
This memorandum also introduces an update to the Review and Modification
(REVMD) activity chain in the Michigan Child Support Enforcement System
(MiCSES). With the Child Support 23.1
Release on March 10, 2023, IV-D workers will have a new reason code to select
when modifying support after a payer is released from incarceration. This code,
“3M – NCP Release Support Redetermined, ”will allow IV-D staff to accurately
document the reason for modifying (or redetermining) a payer’s support. This
will improve the child support program’s ability to track data about support
orders that are modified after a payer’s incarceration.
2023-006 4/7/2023
Pilot Project: Summary Support and Paternity Act (SSPA)
The Office of Child Support (OCS) has approved
the expansion of a pilot project intended to test the viability of procedures
established in the Summary Support and Paternity Act (SSPA) for Title IV-D
cases. These procedures may result in establishing an order more quickly
because court proceedings are less likely or even eliminated in both paternity
and support-order establishment efforts. Some interpret the process as less
adversarial because of steps that can prevent a hearing. In 2021, the Van Buren County Friend of the
Court (FOC) and the Friend of the Court Bureau (FOCB) in the State Court
Administrative Office worked collaboratively to create forms and processes for
testing SSPA procedures. Van Buren County has been piloting these forms and processes
in select cases to determine the ease, success and efficiency of the Act. In
the coming months, OCS, in partnership with the Program Leadership Group (PLG),
will authorize additional county IV-D offices to pilot the process in
designated cases. OCS is not yet
approving expansion statewide or in all cases until the FOCB conducts an
evaluation to identify the benefits and potential drawbacks of the process.
