Great Big Link to Everything

Additional Detail:

Access to Court Records

MCR 8.119(E) Generally covers access to court records by the public. Every court must have an administrative order regarding reasonable access (4) and specifying the reasonable cost of reproduction. ADM 2000-03 contains a model LAO and other policies relating to access to records. MCR 8.119(F) Allows records to be sealed by the court under limited circumstances.

Access to Friend of the Court Case Records

MCR 3.218 – Generally bars access to confidential information, and restricts access to other information to parties, guardians, and their attorneys. Other access is allowed by need for particular roles – e.g. auditors, CAC grievances, IV-D program, P.S., etc. Most other access (e.g. Collection agency, probation or parole officers, credit agency, media, etc.) requires requestor to seek a court order to gain access (MCR 3.218(G)). The rule does not authorize providing information based on a release signed by one or both parties. Nothing prohibits a party who legally has access from providing a record about their case to another person or agency.

The court may make an administrative order to reasonably protect records and prevent excessive and unreasonable interference (MCR 3.218(H)). ADM 2003-07 contains a model LAO.

Anyone wanting access to a friend of the court record should use the Request to Access Friend of the Court Records form.

SCAO’s recommendation for non-qualifying agencies to gain access to information contained in FOC records would be to have one of the parties provide it. For instance, if an order required a criminal defendant to pay their support order or arrears, the payer would have to get the records and provide them to the probation department, rather than having the FOC office provide the information directly. Or if a low income housing agency needed to get a payee's support receipt records, the FOC can provide them to the payee, who in turn is responsible for getting the records to the agency.

Policy ADM 2003-07 – Confidentiality and Access to Friend of the Court Records http://courts.michigan.gov/scao/resources/other/scaoadm/2003/2003-07.pdf

FORM: Request to Access Friend of the Court Records and Decision (SCAO Approved FOC 72) http://courts.michigan.gov/scao/courtforms/domesticrelations/focgeneral/foc72.pdf

FOC Records on MiCSES: The actual ownership of records maintained on MiCSES and the responsibility for their control is currently a matter that has not been resolved with OCS. OCS AT 2004-022 suggests their agency's willingness to permit third-party access with a signed release. Despite OCS's willingness, FOC offices still cannot release the same information, since the type of access OCS allows is not permitted in the court rule.

Fees: The LAO mandated under MCR 8.119(E) establishes the reasonable cost of reproduction and specifies the process for the calculation of fees.

OCS Release of Information: OCS AT 2004-022 permits release of account information and gives access to records to third parties with a signed release. FOC offices cannot release the same information, since the access that OCS permits is contrary to MCR 3.218. OCS’s AT mentions CFU and MiSDU, and that CFU gets legislative inquiries. Third-party agencies (e.g., housing, legislators, etc.) can secure and send a signed release form to OCS (CFU or MiSDU). Releases must include: name of party, the party's address, social security number, date of birth, and docket number or county of order, as well as a statement authorizing release of specified information, effective date of authorization; signature of customer and date of signature. Send requests to: Michigan DHS, Office of Child Support – CFU, P.O. Box 30744, Lansing, MI 48909-8250, or Fax: (517) 241-7234 ATTN: Central Functions Unit; send other requests going to MiSDU route to: MISDU-OCS, Attn: Third-Party Authorization, P.O. Box 30354, Lansing MI 48909-7854, or faxed to 517-318-4697 Attn: Third-Party Authorization

Administrative Adjustment of Arrearage Repayments

MCL 552.519(3)(vi) Requires that the formula manual include guidelines for adjusting arrearage payment amounts when the current support for a child terminates or the payer owes overdue support.

FOC offices required to use the arrears repayment guidelines to administratively adjust arrearage payments. MCL 552.517e

Allowable Deductions from Pay-

Individuals employed in Michigan. An employer may not withhold money that is not expressly permitted by law, a collective bargaining agreement, or the employee's voluntary written consent [MCL 408.477].

Failure to pay the wages and fringe benefits due an employee is a misdemeanor [MCL 408.484], with intent to defraud [MCL 408.485].

MCL 552.621 was repealed in 1990, and MI employers are not allowed to charge $.50 fee for each payment withheld that was previously allowed.

Individuals employed in another State. The wage and hour or employment laws of the state of employment apply to that individual’s earnings. MI law does not control that employer’s action since that employment is outside Michigan’s jurisdiction.

Bank Accounts

-ADM 2003-04 - Bank Accounts for Processing Payments

-Bank Account Transfer (See FAQ 2003-02)

- Court Administrative Ref. Guide - Financial Management Guidelines include banking and accounting requirements: (CARG– Chapter 6)

- Escheat – Audits and Compliance

http://courts.michigan.gov/scao/features/mailings/2005/10-27-05/Escheats.pdf

-Post-Transition Payment Processing (See FAQ 2003-02)

Case Closure

Policy ADM 2001-09

Pursuant to MCR 3.209(A)(2), “A support obligation cannot be suspended except by court order.” Therefore, if MI has issued a support order, an order suspending the charge (e.g. reconciliation) or suspending the automatic enforcement (as MCR 3.209(A)(1) suggests. The requirement for a court order may be satisfied in advance by providing abatement provisions in support orders (e.g., an order might state that support will abate if the parties marry or remarry and the payer lives in the home of the minor children; or the children reside on a full-time basis with the support payer, etc.).

In responding interstate cases, distinguish between cases as whether we have issued an order or not. Treat cases where we issued order as any other MI case. Enforcement-only cases should follow the administrative closure criteria and process, and should not require an order.

Collection Agency - Use of private agency to collect child ssupport

- Guidelines for Procedures Regarding Payee Retention of Private Collection Agencies on Friend of the Court Cases - ADM 2001-08 http://courts.michigan.gov/scao/resources/other/scaoadm/2001/2001-08.pdf

Court Officers

- Appointing - ADM 2002-04: http://courts.michigan.gov/scao/resources/other/scaoadm/2002/2002-04.pdf

o court rule - http://courts.michigan.gov/scao/courtforms/mcr3106.pdf

o employee procedures- http://courts.michigan.gov/scao/resources/other/scaoadm/2002/2002-04employee.pdf

o independent contractor procedures http://courts.michigan.gov/scao/resources/other/scaoadm/2002/2002-04contractor.pdf

o Oath of Office

o sample identification card http://courts.michigan.gov/scao/resources/other/scaoadm/2002/2002-04identification.pdf

o surety bond requirements http://courts.michigan.gov/scao/resources/other/scaoadm/2002/2002-04suretybond.pdf

o forms http://courts.michigan.gov/scao/courtforms/index.htm#courtofcr

- Certification as law enforcement officer - trial court staff does not fit the definition of a "police officer or law enforcement officer" under the Law Enforcement Officers Training Council Act of 1965, which regulates the certification of officers. This is especially true because to qualify the governmental agency has to be involved in "the prevention and detection of crime and the enforcement of the general criminal laws of this state." MCL 28.601(k). MCOLES w/ MSP oversees the certification of officers, in the end, it is their call as to whether someone qualifies or continues certification.

Criminal Non-support

- State laws - MCL 750.161 (Desertion, failing to provide – felony), MCL 750.165 (Refusing to Support – felony), MCL 750.167 (disorderly person)

- FOC State Referral Policy SCAO ADM 2003-11

- Federal Criminal (18 USC 228)

- Federal Referral Policy – OCS AT 2001-044, Referral Instructions, Referral Form

- Crime Victims Rights – SCAO policy. http://courts.michigan.gov/scao/resources/other/scaoadm/2001/2001-07.pdf

- Restitution – in Crimes victims rights act. http://www.legislature.mi.gov/mileg.asp?page=getObject&objName=mcl-780-767

Custody, Child

- Determinations – in determining custody, a court must first determine whether an established custodial environment exists in order to determine the burden of proof required to support a change in custody. Under MCL 722.27(1)(c), if an established custodial environment exists, a court cannot change custody unless presented “clear and convincing evidence” that a change is in the best interests of the child; if an established custodial environment does not exist, the court must apply the “preponderance of evidence standard.” The court applies the standard of evidence to the best interest factors found in MCL 722.23. The court must also consider the age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship. MCL 722.27(1)(c). MCR 3.210(C) requires that the court(1) hold a hearing within 56 days and (3) render a decision within 28 days from the hearing; the court must (6) give the parties an opportunity to review the friend of the court report and file objections before a decision is rendered.

- Enforcement – Authority found in MCL 552.641, and SCAO guidelines on custody and parenting time enforcement found in ADM 2002-11.

- Established Custodial Environment – established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. MCL 722.27(1)(c). Prior orders do not establish the environment. This means a custodial relationship of a significant duration in which the child is provided the parental care, discipline, love, guidance and attention appropriate to his age and individual needs; an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability, and permanence.

The Investigation Manual contains an established custodial environment section. See Custody Determinations above for how court uses the custodial environment to determine the standard of evidence it must apply.

- Factors, Best Interest –.determined by the sum of all factors ((a)-(l)) found in MCL 722.23. All factors do not carry the same weight. The Investigation Manual contains a section that explains the best interest factors.

- Investigations – Under MCL 552.505(g), if ordered by the court, or when there is a dispute as to child custody or and domestic relations mediation is refused or is unsuccessful, the friend of the court must investigate the relevant facts (an accurate assessment), and based on the best interests and established custodial environment factors, make a written report and recommendation to the court and parties. Investigations must include documentation of alleged facts (if practicable), and may include reports and evaluations by outside persons or agencies if requested by the parties or the court. MCR 3.210(C)(1) requires that the court hold a hearing within 56 days and (3) render a decision within 28 days from the hearing, so timely completion of the investigation is necessary, since the court must (6) give the parties an opportunity to review the report and file objections before a decision is rendered. Also see Custody and Parenting Time Investigation Manual;

Depository Libraries

Providing Publications – Must furnish not less than 75 copies of each public document or 1 copy in the proper format as determined by the state librarian to the library. MCL 397.19

Website -Michigan Documents Depository Program- http://michigan.gov/hal/0,1607,7-160-17449_18637_18651-57860--,00.html

Effective Date of Legislation

The varying effective dates and the use of immediate effect have been throwing many people. At the end of some bills, there are enacting sections that cite a particular date the law is to become effective. Even though a public act says immediate effect in one place, the section stating a specific date as the effective date supersedes the day the governor signs it into effect. Enacting sections pertain to the whole Public Act, unless it clearly states specific individual sections. Something labeled Enacting Section 1, pertains to the entire act, not only to section 1 of the statute.

Unless given immediate effect, all MI laws go into effect 90 days after "sine die" (i.e., ending of the legislative session and usually falls sometime in March of odd numbered years). The language about immediate effect is added to every law that becomes effective on a date other than 90 days after "sine die". If the legislature intends a date other than the date the governor signs it, they need to specify another date. If it truly means immediate effect, the date would be missing from the effective date section.

Electronic Recording of Proceedings

Only a certified electronic recorder may record court proceedings. MCR 8.108(G)(1)(a) requires that court or deposition proceedings pursuant to court rules be recorded only by certified reporters and recorders.

Certification requirement also applies to judges, referees, magistrates, etc. http://courts.michigan.gov/scao/features/mailings/2005/12-15-05/8.108JudOfficers.pdf

English

- Pleadings and other documents Any document filed as a pleading, attachment to a pleading, and other papers (motions, affidavits, and other papers in court rules) falls under MCR 2.113(B) states "Every pleading must be legibly printed in the English language . . ." Any translation must also contain a certification/ affirmation that the translation is accurate. Also see Case File Management Standards Component 4

- Foreign Orders - A "registering" court needs to understand what orders and pleadings say before it can afford full faith and credit. Unless everyone who is responsible for all aspects of an order's registration, automation, (potentially modification), and enforcement, and the party under our jurisdiction understands the order’s original language, it needs to be translated before anything can be done.

- Translation Costs - Translation costs for child support related documents are a billable as a IV-D expense. Additionally, under UIFSA, MCL 552.1322 permits assessing some costs.

- Also See Interpreter - Costs

Equitable Parent Doctrine

Theory allows a man that is not the biological father of a child to still be considered a parent if the child was born during the man’s marriage to the child’s mother. The equitable parent doctrine has not been extended beyond the context of marriage. [Killingbeck v Killingbeck, 269 Mich App 132, 142; 711 NW2d 759 (2005)]

A husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of a father-child relationship over a period prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support. [Van v Zahorik, 460 Mich 320, 330; 597 NW2d 15 (1999)]

The equitable parent doctrine has not been extended beyond the context of marriage. [Killingbeck v Killingbeck, 269 Mich App 132, 142; 711 NW2d 759 (2005)]

Escheat – Unclaimed Property

The law requires that when an entity, whether state or local government, a bank, insurance company, other individual, etc., holds the property of another and cannot return it to its rightful owner, that entity or individual must give it to the State for safe keeping (escheat). Uniform Unclaimed Property Act of 1995 MCL 567.221 et seq. Property unclaimed by owner for 1 year and held by a court or the state is presumed abandoned MCL 567.234. Required reporting regarding unclaimed property MCL 567.238. Required transfer of unclaimed property after conditions are met MCL 567.240.

The unclaimed property division of Treasury has issued a manual about reporting unclaimed property. http://www.michigan.gov/documents/2013i_2598_7.pdf

Retaining or reapplying monies to another payee is not really permitted. To do so would 1) violate state escheat laws and 2) violate a payee's constitutional rights by taking property without due process of law. See 10/27/05- SCAO Memorandum on Unescheated Funds in Friend of the Court Accounts.

FOCs getting ex parte orders to circumvent escheat laws, take money distributed to a payee, and reapply it to State arrears is problematic. It violates the escheat law requirements to turn over abandoned property and MCR 3.218(C)(2) distribution requirements. It may violate the payee’s right to due process. It likely violates the requirements for ex parte orders in MCR 3.207(B), that the petitioner must show (in an affidavit or verified pleading) that irreparable injury, loss, or damage will result from the delay required to effect notice.

Ethics -

Employee Conduct - All Michigan court employees hold highly visible positions of public trust. Court staff must conduct the judiciary’s business in an environment and manner that favorably reflects the fundamental values of Michigan’s judicial system. At all times, staff actions should uphold and increase the public trust and confidence in the judicial branch, and always reflect the highest degree of integrity.

Legal Advice – See below

MJI Model Code for Court Employees – MJI - Model Code of Conduct for Judicial Employees

Facilities

ADA - UNIVERSITY OF ALABAMA PETITIONERS v PATRICIA GARRETT – A State’s immunity under the ADA does not extend to other local units of government.

ADA - Tennessee v. George Lane Allows damages against States under Title II for not having reasonable access in courthouses.

SCAO Facility Standards - The Michigan Courthouse; A Planning and Design Guide for Trial Court Facilities

Family Support Act Public Act 138 of 1966: MCL 552.451 to .559

A final judgment in a divorce supersedes a family support act order. MCL 552.455 If a court with personal jurisdiction over the parties (whether MI court or not), enters a judgment of divorce or of separate maintenance, by an order entered under the family support act is null and void upon the effective date of that judgment.

Financial Controls

Not following all of the required financial controls and safeguards leaves great potential for embezzlement or loss. Each office needs policies and procedures, and compliance checks regarding all financial processes.

Separation of duties: Financial duties divide into four categories: opening the mail, receipting, balancing revenues, and bank account reconciliation. Individual staff members exclusively work on duties within one category. Redistribute critical duties; for example, employees who receipt revenue should not be involved with opening the mail, balancing revenues to the accounting records, or reconciling bank records. Receipting staff should not adjust or credit accounts.

Financial Management Guidelines (CARG– Chapter 6-05)

Friend of the Court – petition for Bench Warrant

MCR 3.208(B)(6) permits FOCS to petition for an order of arrest at any time, if immediate arrest is necessary.

FAQ – SCAO/FOCB Frequently Asked Questions

- Website: http://courts.michigan.gov/scao/resources/publications/focbnewsletters/faq.htm

- FAQ 2003-01 - Converting & Prorating Monthly Support Amounts
Attachment: Excel Spreadsheet for converting and prorating is found at http://courts.michigan.gov/scao/resources/publications/focbnewsletters/ProRateCS3.xls
FAQ 2003-02 - Bank Account Transfer and Post-Transition Payment Processing
FAO 2003-03 - Payment and Distribution of Related Statutory Fees

- FAQ 2004-01 - Judgment Entry Fee

- FAQ 2004-02 - Lump Sum Payments and Processing

- FAQ 2005-01 - Determining, Changing, or Suppressing Addresses

- FAQ 2005-02 - MCR 3.211 Amendments Uniform Support Order & Judgment Information Form

- FAQ 2007-01 - Using Cash Bonds to Secure Future Child Support

- FAQ 2007-02 - Prisoner Account Withholding for Support

Fees

$1.50 per Month – Non IV-D service fee- Referred to PF in MiCSES – Processing Fees. Fee paid by every person required to make payments of support or maintenance collected by the FOC or SDU for services provided not reimbursable under Title IV-D of the Social Security Act. [MCL 600.2538] $.25 sent to county, $1.00 to state court fund, $.25 deposited with State Treasurer for AG operations fund. (Effective 10/1/03, Public Act 138 of 2003 required a $.25 increase for AG fund).

$2.00 per Month – Referred to as SF in MiCSES. Fee is payable semiannually on January 2 and July 2 in advance to reimburse the county for the cost of enforcing support or parenting time orders. Only certain acts that authorize setting support provide authority to charge the fee, so it can only be charged in certain types of actions (e.g. Divorce – MCL 552.23(3), separate maintenance, paternity, custody act, RURESA, family support act, etc., and not UIFSA, nor UCCJEA). Fee collected from person ordered to pay spousal or child support through the FOC or SDU. Court may hold a person who fails to pay in contempt.

$42 / year = $3.50 / mo (total of $2.00 and $1.50 fees)

Copying fees – see Access to FOC records.

Employer fees to withhold – See reference to Repealed MCL 552.621 under Allowable Deductions from Income.

Judgment Entry Fees FAQ 2004-01 and 2004 Public Acts Memo

Payment included on IWN - See IWN

2004 Public Acts Affecting Friends of the Court and Circuit Courts

FOCB List of Policies 1998-2000 2001 2002 2003 2004 2005

- Also See FAQ

o FOC Policy and Procedures Memo1983-1 - Make Up Visitation. This policy provides a guideline for circuit courts to formulate their make up parenting time policy. Policy 2002-11 supersedes this one. (Superseded)

o FOC Policy and Procedures Memo1983-2 - Social Security Numbers - This policy was developed pursuant to Supreme Court referral on the issue of whether social security numbers should be required on the statement to the Friend of the Court which is filed with the original complaint in domestic relations matters. The subject matter of this policy has since been established by statute and court rule. (Superseded by Statute and Court Rule)

o FOC Policy and Procedures Memo1983-3 - Grievance Procedure - This policy establishes suggested language for addressing grievances that have been filed that deal with matters that are not grievable under the statute. Policy 1984-3 supersedes this one. (Superseded)

o FOC Policy and Procedures Memo1983-4 - Uniform Fee Collection - This policy contains recommendations on how to assess and when to collect the judgment fees ($30.00, $50.00 and $70.00) which may be assessed in divorce cases involving minor children. (Superseded by Statute)

o FOC Policy and Procedures Memo1983-5 - Changing Wage Assignments to Income Withholding Orders -This policy dealt with how to change existing wage assignments to income withholding orders pursuant to new laws authorizing income withholding orders.

o FOC Policy and Procedures Memo1983-6 - Annual Statutory Review - This policy established the time frames and procedures for conducting the annual statutory review. Policy 1984-2 supersedes this one. (Superseded)

o FOC Policy and Procedures Memo1984-1 and 1984-1 (Amended). This policy disseminated the first camera-ready copy of a model Friend of the Court Informational Pamphlet. The bureau updates this pamphlet annually.

o Friend of the Court Bureau Policies and Procedures Memo 1984-2 - Annual Statutory Review (Replaces 1983-6) - This policy contains the current standards for the annual statutory review.

o Friend of the Court Bureau Policy and Procedure Memo 1984-3 (Replaced 1983-3) - This policy defines what a grievance is and how it may be filed. It also states how the grievance should be answered. Some portions of this policy have been modified by statute. ADM 2003-3 supersedes this policy. (Superseded)

o Friend of the Court Bureau Policy and Procedure Memo 1984-4 - This policy contains guidelines for the transfer of domestic relations cases. Court rules have superseded some portions of this policy.

o Friend of the Court Case Administrative Closure Criteria dated July 1, 1992. Superseded by SCAO ADM 2001-09. This policy contained guidelines for the administrative closure of court cases involving support. (Superseded)

o 1993 Policy re: Credit Reporting. This policy contains the original guidelines for credit reporting. It was superseded by Friend of the Court Model Policy and Procedures Memo 1996-3. (Superseded)

o Friend of the Court Model Policy and Procedures Memo 1995-1 - Surcharge on Support Arrears. This policy contains the guidelines for implementation of Public Act 141 relating to surcharges on support arrears. It was superseded by SCAO ADM 1998-09. (Superseded)

o Friend of the Court Model Policy and Procedures Memo 1996-1 - Arrearage and Confinement Payment Guidelines. This policy establishes the arrearage and confinement repayment guidelines. Superseded by Child Support Formula Manual. (Superseded)

o Friend of the Court Model Policies and Procedures Memo 1996-2 - License Suspension for Violation of Support and/or Parenting Time. This policy recommended guidelines and procedures for the suspension of licenses. It was superseded by SCAO ADM 1999-09. (Superseded)

o Friend of the Court Model Policies and Procedures Memo 1996-2a - License Suspension for Violation of Support and/or Parenting Time Attorney=s License to Practice Law. This policy recommended guidelines and procedures for the suspension of licenses to practice law. It was superseded by SCAO ADM 1999-09. (Superseded)

o Friend of the Court Model Policy and Procedures Memo 1996-3 - Public Act 276 of 1996: Consumer Reporting. This policy establishes policies and procedures for making support information available to a consumer-reporting agency under the Friend of the Court Act.

o Friend of the Court Model Policy and Procedures Memo 1997-1 - Reasonable Cost of Maintaining Health Insurance Coverage. This policy established a table for determining the reasonable cost of maintaining health insurance coverage.

o Friend of the Court Model Policy and Procedures Memo 1997-2 - Payment by Electronic Funds Transfer (EFT). This policy was developed pursuant to federal law that required states to create systems to use electronic process and automated procedures to the extent possible to collect and disburse support payments. The memo included a model Local Administrative Order.

o Friend of the Court Policy and Procedures Memo 1998-1 - Charging of Service and Handling Fees on Uniform Interstate Family Support Act (UIFSA) cases. This policy clarified which interstate cases allowed the Friend of the Court to charge service fees and advised that no handling fees could be charged on such cases.

o Friend of the Court Model Policy and Procedures Memo 1998-2 B Distribution of Monies Paid Through the Friend of the Court. This policy established the priority of distribution of monies paid through the Friend of the Court. It was superseded by interim court rule MCR 3.208 and SCAO ADM 2000-08. (Superseded)

Stopped issuing separate FOCB policy – issued with other court policy as Administrative Memorandums - ADM

o SCAO ADM 1998-05 B Unemployed Non-Custodial Parent Program. This policy was superseded by SCAO ADM 2001-04. (Superseded)

o SCAO ADM 1998-09 - Surcharge -This policy revises the method by which surcharges applies to arrears.

http://courts.michigan.gov/scao/resources/other/scaoadm/1998/1998-09.pdf

o SCAO ADM 1999-09 - License Suspension for Violation of Support and/or Parenting Time. This policy consolidated and revised the two previous license suspension policies.

o SCAO ADM 2000-08 - Allocation and Distribution of Support Accounts. This policy implemented interim court rule MCR 3.208 regarding allocation and distribution of monies paid on support accounts.

http://courts.michigan.gov/scao/resources/other/scaoadm/2000/2000-08.pdf

o SCAO ADM 2000-11 B Administrative Liens for Past Due Support. This policy established procedures to implement a new administrative lien statute.

http://courts.michigan.gov/scao/resources/other/scaoadm/2000/2000-11.pdf

o SCAO ADM 2001-02 B FOC Administrative Case Closure Criteria. This policy superseded the policy dated July 1, 1992, and subsequently was superseded by SCAO ADM 2001-09 (Superseded)

o SCAO ADM 2001-04 - Non-Custodial Parent Work First Program. Supersedes SCAO ADM 1998-05, Family Division Policy 1998-FD-2. This policy provides program requirements and the ways in which the program is to be monitored for effectiveness.

http://courts.michigan.gov/scao/resources/other/scaoadm/2001/2001-04.pdf

o SCAO ADM 2001-05 B Family Division Policy Citizen Advisory Committee Access to Friend of the Court Records. This policy implements MCL 552.504b. It was superseded by 2003-07. (Superseded)

o SCAO ADM 2001-08 B Guidelines for Procedures Regarding Payee Retention of Private Collection Agencies on Friend of the Court Cases. This policy clarifies FOCs= responsibilities when a payee on a case retains a private collection agency.

http://courts.michigan.gov/scao/resources/other/scaoadm/2001/2001-08.pdf

FAQ 2003-03 - Payment and Distribution of Related Statutory Fees

o SCAO ADM 2001-09 B Friend of the Court Support Case Administrative Closure Criteria. This policy supersedes SCAO ADM 2001-02. It incorporates the new federal IV-D guidelines and provides expanded guidelines for friends of the court to use to close both IV-D and non IV-D support cases administratively.

http://courts.michigan.gov/scao/resources/other/scaoadm/2001/2001-09.pdf

o SCAO ADM 2002-10 B Converting Support Orders to Monthly Amounts. This policy directs how to convert weekly orders to monthly amounts. Clarified in FAQ and now updated in the Formula Manual.

http://courts.michigan.gov/scao/resources/other/scaoadm/2002/2002-10.pdf

FAQ2003-01 Converting and Prorating Monthly Support Amounts

o SCAO ADM 2002-11 B Guidelines for Enforcement of Custody and Parenting Time Violations. This policy provides guidelines for FOC offices to enforce custody and parenting time order violations. It rescinds and replaces 1983-1.

http://courts.michigan.gov/scao/resources/other/scaoadm/2002/2002-11.pdf

o SCAO ADM 2003-02 - Implementation of New Michigan Court Rule on Incarcerated Parties. This memorandum provides guidance concerning the implementation of MCR 2.004.

http://courts.michigan.gov/scao/resources/other/scaoadm/2003/2003-02.pdf

o SCAO ADM 2003-03 - Friend of the Court Complaint and Grievance Procedure. This policy explains the grievance procedure and how it is used. It supersedes 1983-3 and 1984-3.

http://courts.michigan.gov/scao/resources/other/scaoadm/2003/2003-03.pdf

o SCAO ADM 2003-04 - Bank Accounts for Processing Payments. This policy explains how bank accounts will be used after transition to the MiSDU and how the transfer should occur. Also clarified in a FAQ

http://courts.michigan.gov/scao/resources/other/scaoadm/2003/2003-04.pdf

FAQ 2003-02 - Bank Account Transfer and Post-Transition Payment Processing

o SCAO ADM 2003-07 - Confidentiality and Access to Friend of the Court Records. This policy explains what FOC records are confidential and how they may be accessed and protected.

http://courts.michigan.gov/scao/resources/other/scaoadm/2003/2003-07.pdf

Supplement to 2003-07

o SCAO ADM 2003-08 - Filing Fee Increases, Friend of the Court Service Fee Increase, Civil Infraction Assessments, Minimum Costs, Conditions of Probation and Parole, and Priority of Payment

http://courts.michigan.gov/scao/resources/other/scaoadm/2003/2003-00.pdf

FAQ 2003-03 - Payment and Distribution of Related Statutory Fees

o SCAO ADM 2003-11 - Friend of the Court Criminal Referral Procedure

http://courts.michigan.gov/scao/resources/other/scaoadm/2003/2003-11.pdf

o SCAO ADM 2004-01 - MCR 3.221 Implementation – How Circuit Courts should implement MCR 3.221 Hearings on Support and Parenting Time Enforcement Act Bench Warrants, requires submission of an LAO.

http://courts.michigan.gov/scao/resources/other/scaoadm/2004/2004-01.pdf

o SCAO ADM 2004-04 - Lump Sum Arrearage Interpretation - Clarify circuit court orders for the installment payment of lump sum support obligations

http://courts.michigan.gov/scao/resources/other/scaoadm/2004/2004-04.pdf

Includes submission of LAO http://courts.michigan.gov/scao/resources/other/lao.htm#install

FAQ 2004-02 - Lump Sum Payments and Processing

o SCAO ADM 2004-07 - Changes in Surcharge Law

http://courts.michigan.gov/scao/resources/other/scaoadm/2004/2004-07.pdf

o SCAO ADM 2004-11 - Abatement Deviation Policy

http://courts.michigan.gov/scao/resources/other/scaoadm/2004/2004-11.pdf

o JDF Memo – Enforcing Non-IV-D Cases (alimony only)

http://courts.michigan.gov/scao/features/Mailings/2004/09-24-04/MCL552.503spousalsupport.pdf

o JDF Memo – New FOC Legislation

http://courts.michigan.gov/scao/features/Mailings/2004/10-01-04/2004FOCLegislation.pdf

o 2004 Public Acts Affecting Friends of the Court and Circuit Courts

http://courts.michigan.gov/scao/features/Mailings/2004FOCLegislation.pdf

Supplement – FAQ http://courts.mi.gov/scao/resources/publications/focbnewsletters/faq2004-01.pdf

o SCAO ADM 2004-14 – Medical Support Policy

Superseded by 2005-03

o SCAO ADM 2004-15 - Guidelines for Determining, Changing, or Suppressing Addresses of Parties and Nonparties

http://courts.michigan.gov/scao/resources/other/scaoadm/2004/2004-15.pdf

o SCAO ADM 2005-03 – Medical Support Policy For Friends of the Court

http://courts.michigan.gov/scao/resources/other/scaoadm/2005/2005-03.pdf

o SCAO ADM 2005-04 – Administrative Abatement and Redirection of Support Policy

http://courts.michigan.gov/scao/resources/other/scaoadm/2005/2005-04.pdf

o SCAO ADM 2005-05 – Child Support Arrearage Repayment Plan

http://courts.michigan.gov/scao/resources/other/scaoadm/2005/2005-05.pdf redirects you to misupport.cses.state.mi.us/policy/stateat/pdf/2005/2005-012.pdf

o Unescheated Funds in Friend of the Court Accounts Memorandum

http://courts.michigan.gov/scao/features/mailings/2005/10-27-05/Escheats.pdf

o SCAO ADM 2005-09 – MCR 3.211 Amendments

http://courts.michigan.gov/scao/resources/other/scaoadm/2005/2005-09.pdf

FAQ - MCR 3.211 Amendments Uniform Support Order & Judgment Information Form http://www.courts.mi.gov/scao/resources/publications/focbnewsletters/FAQ2005-02.pdf

FAQ 2007-03 - Changes to Uniform Support Order

Uniform Support Order – FOC 10 [w/ FOC services] http://www.courts.mi.gov/scao/courtforms/domesticrelations/support/foc10.pdf

Uniform Child Support Order, No Friend of Court Services (foc10a.pdf)

Uniform Spousal Support Order (foc10b.pdf)

Uniform Spousal Support Order, No Friend of Court Services (foc10c.pdf)

Judgment Information Form – FOC 100 http://www.courts.michigan.gov/scao/courtforms/domesticrelations/focgeneral/foc100.pdf

o SCAO ADM 2006-03 – Review and Modification of Child Support Orders

http://courts.michigan.gov/scao/resources/other/scaoadm/2006/2006-03.pdf

o SCAO ADM 2006-04 – SSN Privacy Policy and Records

http://courts.michigan.gov/scao/resources/other/scaoadm/2006/2006-04.pdf

o SCAO ADM 2006-05 – Withholding Child Support from Prisoner Account Funds

http://courts.michigan.gov/scao/resources/other/scaoadm/2006/2006-05.pdf

Order to Remit Prisoner Funds for Child Support (foc112.pdf)

FAQ 2007-02 –Prisoner Account Withholding For Support

o SCAO ADM 2007-02 – Adjustments of Child Support -Called to Active Duty Military Service

http://courts.michigan.gov/scao/resources/other/scaoadm/2007/2007-02.pdf

o SCAO ADM 2007-03 – Changes to Uniform Support Order

http://courts.michigan.gov/scao/resources/other/scaoadm/2007/2007-03.pdf

Grants-

- DUNS Number- required for federal grants for the SCAO/Supreme Court is 360-709-356.

- State Single Point of Contact – federal grants Executive (Presidential) Order 12372 requires that grants in about 400 areas be reviewed by a State's single point of contact (SPOC). The federal funding stream determines the need for review by the SPOC and not the agency seeking funding. Currently any applications for grants in the specified areas (will be listed in the grant description) have to be sent to our SPOC at the same time they are submitted to the feds. Originally, the SPOC part of a state agency, but when that department was changed in 1996, Gov. Engler appointed Southeast Michigan Council of Governments SEMCOG as Michigan's SPOC. http://www.whitehouse.gov/omb/grants/spoc.html

Grievance – FOC

Statutory (MCL 552.526) procedure designed for parties to complain about friend of the court's operations or employees. Parties must first submit complaints directly to the FOC office. Complaints may be on the Friend of the Court Grievance form (FOC1a.pdf) or in a letter clearly labeled as a grievance. FOC offices have 30 days to respond. If the party disagrees with the response or if the FOC fails to respond after 30 days, the party can file a second level grievance with the chief circuit court judge.

- Policy - SCAO ADM 2003-03

- Reporting - <Instructions for submitting semi-annual reports

Grievance Record SCA028.pdf Offices should submit using an excel spreadsheet provided by the SCAO

- Website http://courts.michigan.gov/scao/complaints/

Guidelines Issued by SCAO/SC

- Absent Children - Development of Plans Involving Children who are Absent Without Legal Permission

- Abstracting Felony Offenses - Chart of Felony Offenses for which Secretary of State Abstracting is Required

- Accommodations - Model Policy on Requests for Accommodatiions by Persons with Disabilities

- Alternative Dispute Resolution Plans

- Appointment of Counsel for Indigent Defendants

- Assigning Judges

- Attorney General Representation – Securing AG representation for court staff

- Case Evaluation Guidelines for Preparing Local Administrative Orders for Selecting Case Evaluators and Case Evaluation Panels

- Collection on Friend of the Court Cases Guidelines for Procedures Regarding Payee Retention of Private Collection Agencies on Friend of the Court Cases

- Concurrent Jurisdiction Planning Guide and Guidelines & Application

- Custody and Parenting Time Violations Guidelines for Enforcement of Custody and Parenting Time Violations

- Family Court Plan Requirements and Guidelines and Summary of Requirements

- Local Administrative Orders - Guidelines for Submitting LAOs for Approval

- Weather – Guidelines for Weather Emergencies

Identifying information on forms – barred from delivering an envelope or package which contains the SSN or DLN visible or viewable from the outside. PA 1 of 2000 -- MCL 37.252

- Found no federal restrictions on use of SSN, although may be a issue on banking instruments (checks and stubs)

Income Withholding

Amount: Notices sent in amount sufficient to meet the payments ordered for support and service fees, and to defray arrearages in payments and service fees due. MCL 552.609.

also see Repayment Amounts

Employer fees to withhold – See reference to Repealed MCL 552.621 under Allowable Deductions from Income.

Inmate Accounts: DOC does not recognize funds held in prisoner accounts as income, so alternative process was developed by DOC and SCAO to prevent need for OTSC of DOC. See ADM 2006-05, foc112.pdf and FAQ 2007-02

Maximum amount of withholding under CCPA - For child support, between 50% and 65% of an individual’s disposable earnings [earnings = compensation for services whether for wages, salary, commission, bonus, etc.; disposable = amount remaining after deduction of any amounts required by law to be deducted e.g. Tax, SS, etc.] may be withheld. For individuals who support another spouse or child 50%, while those without another spouse or child 60%. If the individual owes over 12 weeks’ arrears add 5% [i.e., max = 55% or 65%]. 15 U.S.C. 1672 and 1673

Military Maximum Allotment - DOD Vol 7A Chapter 43 Sect. 4304 prohibits inclusion of BAH as income when calculating the maximum allotment (i.e., maximum amount withheld) for E6 ranks or lower (430403.E (page 43-8)). The sections definitions (430302) cites 42 USC 665 which shows that it applies the CCPA [(15 USC 1673)] into military terms.

Required Notice Provisions: MCL 552.609

Total amount of withholding for all orders for current support, past due support, fees, and health care coverage premiums shall not exceed the maximum amount permitted under section 303(b) of the consumer credit protection act 15 U.S.C. 1673. MCL 552.608

Interpreters

- Appointment - Under MCR 2.507(D) a court may selecct and appoint its own interpreter.

- Certified Interpreters - SCAO Lists

- Costs - MCR 2.507(D) allows a court to set reasonable compensation. Costs may be paid by one or more parties or out of funds provided by law. The court can direct one or more parties to split the costs.

- English – See above

- Forms - Motion and Order for Appointment of Foreeign Language Interpreter SCAO Approved Form MC 81

- SCAO Website - http://courts.mi.gov/scao/services/access/inter.htm

- Sign Language List and Update

- Translation – See English

Interstate

- Great Big Link to Interstate

- Testimony

Kidnapping - MCL 750.350 makes it a felony for someone (incl. step-parent or other relatives) to take a child with the intent to detain or conceal from a parent or another person with lawful charge over a child. For parents, see Parental Kidnapping)

Legal Advice - Court staff should not give legal advice. MCL 600.916 makes unauthorized practice of law a misdemeanor. According to Dressel v Ameribank, 467 Mich 557 (2003), a person engages in unauthorized practice of law when that person counsels or assists another in matters that require use of legal discretion or profound legal knowledge (Fall 2006 RAM newsletter article by Catherine M. O’Connell). MJI Publication - Legal Advice v Access to the Courts

Libraries

- Court assessed fines for violations of criminal statutes are earmarked for the libraries by MI constitution, Article 8, section 9, and by statute in MCL 600.4845.

- Depository Libraries

Lottery Intercept. (Email for WIT) MCL 432.32 Permits the seizure of lottery winnings for child support debts. Lottery checks come from Treasury. Treasury uses the State Tax Offset file to match for support arrears. If a match occurs, treasury submits the payment to OCS (MiSDU). The state tax offset program is administered by the central enforcement unit. Any questions or problems needs to be directed to them.

One request about mistaken ID using wrong SSN, person was asked to send them a note explaining the problem, and provide them with a copy of their driver's license and SS Card. Attn: Lottery Intercept /Tax Offset Unit at: Fax (517) 241-7234, or Lottery Intercept /Tax Offset Unit, Office of Child Support, P.O. Box 30478, Lansing, MI 48909-7978

MarginSoft: Support calculation software developed by Craig Ross. cross@comcast.net (734) 663-0998

- FREE Public Child Support Software based on the 2004 MCSF and 2005 tax rates is available at the SCAO website http://www.courts.mi.gov/scao/services/focb/focb_marginsoft.htm. The SCAO makes this available as a public service and as stated on our website (http://www.courts.mi.gov/scao/services/focb/focb_marginsoft.htm) the SCAO does not provide user support for the software. If a question is not answered in the user-manual linked to that page, MarginSoft may be able to provide an answer (Their website is: http://marginsoft.net/).

- Full Software Program calculates child support, alimony, and other financial stuff and purchased directly from http://marginsoft.net.

- Free Full Software for Courts, MarginSoft makes the software available to courts for free. Courts should download (to a PC or server) from www.marginsoft.net. The program runs for 30 days without a key. Either immediately or after the 30 trial period, Court’s "purchase" a registration key from http://www.marginsoft.net/Purchase.htm , making sure it is fairly general (e.g., “Washtenaw County Family Court”) and not an individual’s name. The site will send an invoice and a registration key. The court should return the invoice with a note that this is for use in that circuit. Craig has said he will zero out the invoice.

Marriage – Extinguishes Debt

Any pre-marriage debt owed between the parties is extinguished at marriage. See Sierra v Minnear 341 Mich 182 (1954). AG Opinion #5492 contains additional reasoning that explains how a pre-marriage support obligation terminates at marriage. (AG Opinions not binding on Courts).

Medical Expense Enforcement –

Amount Must Exceed Ordered yearly ordinary medical - Before a FOC can separately enforce uninsured medical expenses, the recipient has to document having paid an amount that exceeds the yearly ordinary medical amount set in the order in effect. Provision 5 of the current USO states . . . "Uninsured expenses exceeding the ordinary medical amount for the year they are incurred that are not paid within 28 days of a written payment request may be enforced by the friend of the court. The yearly ordinary medical amount is __________." The FOC only enforces amounts above the yearly ordinary medical amount, not expenses included in the amount that the payer pays with their monthly support obligation.

Example for two children, parents have a 60%: 40% split:

Ordered yearly OM Amt: $600 (payer share: $360, recipient share: $240)

OME ordered paid in monthly obligation: $30 ($360/12)

The recipient has to document payment of at least $600 in uninsured medical expenses before the FOC may enforce as an extraordinary medical expense. (Using the $360 would improperly force the payer to pay 60% of the recipient's $240).

Michigan Child Support Formula

Current Manual – 2004 http://www.courts.mi.gov/scao/resources/publications/manuals/focb/2004MCSFmanual.pdf

http://www.courts.mi.gov/scao/resources/publications/manuals/focb/2004MCSFsupplement.pdf

2003 F:/FOC/ChildSupFormula/csf-manuals/2003/2003Update2001MCSF.pdf

Comments: See Suggestions to Change, below

Deviation: See Support – Deviation, below

Libraries: Copies at depository Libraries for the State of Michigan (www.libofmich.lib.mi.us/services/midoclibs.html)

Purchases: Copies of the Manual are printed and sold by West Group. Phone and ordering information: 800-344-5009. Web Sales: www.westgroup.com\store\

Software: See Marginsoft

Required Use: MCL 552.605(2)

SER Calculator –Shared Economic Responsibility Equation in a Spreadsheet

Suggestions To Change:

The Friend of the Court Bureau collects public comment for the purpose of reviewing potential changes to the formula manual. We welcome anyone's input and always look to improve the manual. We encourage public comment to identify problems and to gather suggestions for improvement.

To appropriately document issues, we recommend that all comments and suggestions be written. To make sure we understand what you are saying:

- Try to clearly and concisely state your issues.

- Refer to specific manual provisions or language.

- Suggest specific changes or language changes.

- Include examples or comparisons on the effect of your proposed changes.

- Include any related documentation or research.

Send comments and suggestions to:

Michigan Child Support Formula

c/o State Court Administrative Office/FOCB

Michigan Hall of Justice

PO Box 30048

Lansing, MI 48909

E-Mail: mcsf@courts.mi.gov

Website http://www.courts.mi.gov/scao/services/focb/mcsf.htm

MJI Benchbooks

Adoption Proceedings Benchbook

Child Protective Proceedings Benchbook (Revised Edition)

Contempt of Court

Crime Victim Rights Manual

Domestic Violence Benchbook

FOC Domestic Violence Resource Book

Juvenile Justice Benchbook

Michigan Circuit Court Benchbook

Sexual Assault Benchbook

Oaths

Oath of Office MCL 15.151 requires as a condition of employment that all employees in the service of the state or any local governmental agency take and subscribe to the oath or affirmation required of members of the legislature and other pubic officers by Section 1 of Article 11 of the 1963 Michigan Constitution. The SCAO recommends that the office maintain a file containing oath forms for all persons deputized to perform the functions of their positions. Copies should be available for public inspection upon request. New hires and promotions must sign new oaths. The director should annually verify and update as needed.

“I do solemnly swear (or affirm) that I will support the constitution of the United States and the constitution of this state, and that I will faithfully discharge my duties as an employee of the [Government Agency Name] according to the best of my ability.” Signature line/date

Who must Administer A judge, referee, clerk of the court, or notary public must administer oaths or affirmations [MCL 600.1440 and MCL 600.8317]

Opting Out of FOC Services: MCL 552.605a

FOC required to maintain file unless parties opt out. (5) When opted out, parties to a closed friend of the court case assume full responsibility for administration and enforcement of obligations. (6) Continued payment through the SDU. (7) Public assistance (MCL 552.502a(d) limited to cash assistance) reopens FOC file, court enters order. (8) FOC required to send notice

- Forms

o FOC101 Advise of Rights regarding FOC services

o FOC102 Order exempting case from FOC services

o FOC103 Notice of FOC case closure.

o FOC104 Request to Reopen Case

Parental Kidnapping MCL 750.350a - Makes it a felony for a parent to take or retain a child for more than 24 hours, with the intent to detain or conceal from the other parent or custodian who has custodial or parenting time rights. For non-parent (non-parents, e.g., step-parent, relative, etc., see Kidnapping)

- (5) Complete defense if parent proves actions were taken to protect the child from an immediate and actual threat of physical or mental harm, abuse or neglect.

- FOC cannot intervene in or initiate a criminal matter!

The parent or custodian can:

o request civil enforcement of custody or PT order by FOC (MCL 552.641),

o retain an attorney to initiate civil contempt or modification, or

o file a report with their local police agency (ask to file criminal charge) or contact local prosecutor’s office for information about filing criminal charges.

Passport Denial Is based on arrearages submitted for federal tax offset. The State Department will refuse to issue or renew passports to payer’s who owe over $2,500 in past-due support. Reinstatement begins at the local FOC office and requires working out an installment payment agreement. With an installment agreement in place and current payments being made, the parent may receive a passport without paying the arrearage in full.

Policy - OCS policy controls this process to federal and IV-D law. Policy on withdrawal of passport http://mi-support.mfia.state.mi.us/policy/stateAT/pdf/2002/2002-022.pdf and its form http://mi-support.mfia.state.mi.us/policy/stateAT/pdf/2002/0312-ocs.pdf

Record Retention

Case File Management Standards - Area 4 File Retention and Destruction http://courts.michigan.gov/scao/resources/standards/cf_stds.pdf

FOC Support payment records and files (General Schedule 16 item 71) MCL 600.5809(4)

- When no arrears exist – six years after obligation ends MCL 600.5807(8), or one year after obligation ends if notice sent that records would be destroyed in one year.

- When arrears do exist- following administrative closure and ten years after the obligation to pay support ends. MCL 600.5809(4)

FOC copies of records/originals contained in the court file (e.g. orders, petitions, pleadings, etc.) may be destroyed one year after administrative closure of the case. (General Schedule 16 item 71)

FOC mediation records retained for 6 years after the mediation concludes. (General Schedule 16 item 72) MCL 600.5807(8)

Non-support related FOC records 6 years after the youngest child emancipates. (General Schedule 16 item 73) MCL 600.5807(8)

Schedule General Schedule 16

Receiverships (FOC named Receiver) SCAO ADM 2003-04 Section D clearly states that a FOC should not be appointed as a receiver because (1) a receiver is a fiduciary having responsibilities that may not be appropriate for FOCs and (2) because there is no separate statutory authority for an FOC to be a receiver. The SCAO recommends that FOCs not be appointed as receivers. This does not mean that the court cannot report another person as a receiver in a FOC case.

Repayment Amounts

FOC offices required to use the arrears repayment guidelines to administratively adjust arrearage payments. Offices must afford the payer due process (opportunity for administrative hearing, and appeal on the record to court) MCL 552.517e.

See Income Withholding

res judicata

Definition: means a thing adjudicated; a case/matter that has been decided.

Legal principle: precludes presentation and generally bars relitigation or reconsideration of matters determined in adjudication. It bars a subsequent action between the same parties based on the same facts. For res judicata to apply, the first action must have been decided on the merits, the matter contested in the second action must have been or could have been resolved in the first, and both actions must have involved the same parties or their privies. Dart v. Dart 460 Mich 573 (1999).

UIFSA Provision: MCL 552.1625(3)

Servicemembers Civil Relief Act 50 USC App 521 (and 522)(Formerly Soldiers and Sailors Civil Relief Act)

- Affidavit - Requires that in every civil case whhere defendant does not appear that an affidavit be filed stating whether the person is in the military (and how the fact was determined), or stating that plaintiff has not been able to find out.

- Default Judgment - For defendants on active duty, the court cannot enter a default judgment without appointing an attorney.

- Info from OCSE – Caseworker's Guide Child Support and Military Service http://www.acf.dhhs.gov/programs/cse/fct/militaryguide2000.htm#relief

- Judges Guide to Act produced by the ABA http://www.abanet.org/family/military/scrajudgesguidecklist.pdf

- SCAO Memo to Courts (3/11/04) - O:\FILES\CENT\ALL\RS609 - Official Policies & Communications\AAASD Mailings\2004\03-12-04\ServicemembersCivilReliefAct.pdf

Social Security

- Actual Benefit Types include Social Security (SSB) survivor's, retirement, or disability benefits. Many people confuse Supplemental Security Income (SSI) with SSB, SSI is means tested.

- MCSF treatment:

o The MCSF counts SSB paid to the parent as their income [MCSF 2.01(F)(20)].

o Benefits paid for the children in the case based on the payer's work record counts as the support payer's income and not as custodial parent income [MCSF 2.05 (B)]. See payer benefits paid for children, below.

o SSB paid to the support recipient or the children of the case not based the payer's work record all count as custodial parent income [MCSF 2.05 (C)]. In nearly all cases that SS for the parents’ children in common does not come from the payer's record, benefits come based on the custodian's record. Infrequently, the parties’ children get benefits based on a stepparent’s (or other person's) disability or death, and those payments count as custodial income.

o SSB paid on behalf of another person (not a parent in this case) to “other children” in either parent’s household does not count as that parent’s income. The MCSF only mentions SS benefits in the context of being paid FOR the children in the case being calculated. SSB for “other children” paid on behalf of another person (not a parent in this case) does not fit the statutory definition of income for either parent, and are equivalent to child support paid by a third party.

- Supplemental Security Income (SSI) benefits are to assist those who do not have sufficient work history to qualify for SSB Disability and cannot work because of age, blindness or disability. In essence, SSI sets “a Federal guaranteed minimum income level for aged, blind and disabled persons.” SSI benefits require special treatment in determining an individual’s income and enforcement.

42 USC 407(a) and 1383(d) contain anti-alienation provisions that impose a broad bar against the use of any legal process to reach (attach or withhold) SSI benefits.

Given SSI’s means tested nature [MCSF 2.09] the benefits cannot be counted as actual income. SSI benefits do not preclude imputation of an individual’s income.

- Benefits paid for the children on the support payer's behalf are deducted from the amount that payer has to pay through the FOC office. If the benefit payments to the children exceed the support amount calculated based on the income levels, no additional payments come through the FOC office [MCSF 2.05(D)].

Statistics

- FOC Statistical Reports

- FOC 2003 Statistical Report

- Individual Court Data

Statutory Fees

- FAQ 2003-03 – Allocation and Distribution of FOC Related Statutory Fees (10/17/03)

Support

- Abatement (Administrative Abatement by FOC) MCL 552.605d Allows for the administrative abatement of support when the payer lives full-time with the child for whom support is paid. SCAO ADM 2005-04 (see Support: Redirection)

- Abatement (Parenting Time) see Support-- Parenting Time Abatements

- Abatement Deviation Policy SCAO ADM 2004-11 – Allows deviation incorporating parenting time abatements into a support obligation

- Abatement or Discharge of Arrears – see Support—Arrears Repayment Plans

- Agreements – Parents can agree to support amounts that deviate from the formula, even to $0. (See Agreements to Deviate) However, parents are not permitted to bargain away a child’s right to receive adequate support from the other parent, especially when such action would result in the child becoming a public charge. See Evink and Westerman.

- Arrears Repayment Plans MCL 552.605e allows a payer with an arrearage to petition and ask for a repayment plan on arrearages and to discharge or abate arrearages under certain circumstances. SCAO ADM 2005-05 Child Support Arrearage Repayment Plan Policy redirects to a joint SCAO/OCS AT 2005-012 see link under FOCB policy below

- Change in Circumstances – see Support--Modification, Change of Circumstances

- Converting and Prorating – see Support--Monthly Amounts

- Definition MCL 552.602(ee)- payment of money ordered by the circuit court for a spouse or child, confinement, surcharge.

- Depreciation, MCSF 2.11(D)(7) permits certain deductions if they are consistent with the nature of the business, (b) further restricts deductions from income for depreciation if 1) is individual property and 2) is tangible personal property and 3) is straight-line depreciation.

Taxes – When including depreciation tax deductions in child support income, a court must use actual taxes not theoretical taxes. (See Taxes, below) It is improper to deduct the additional taxes that would have theoretically been paid had the parent not taken the depreciation deduction. Peterson v Peterson, COA 260591 (10/24/06)

- Deviation – Described generally in MCSF 1.04. MCL 552.605(2) Required to use formula unless court finds that application of the formula causes an unjust or inappropriate result. When deviating, the court’s Order or Record must contain specific information. FOC recommending deviation, see Investigation.

Agreements to Deviate - Parties may agree to an amount of support different from the formula and must record MCL 552.605(2)(a)–(d) factors. Agreements may not create an unjust or inappropriate result. MCL 552.605(3). Also see Agreements.

Deviation Criteria – suggested factors that the court may consider found in MCSF 1.04(D)(5). (e.g., special needs child, parent is a minor, parent incarcerated, irregular bonus income, etc.)

Order/Record Requirements – Courts must record certain factors. MCL 552.605(2)(a)–(d), Ghidotti v. Barber 459 Mich 189 (1999) and Burba v. Burba 461 Mich 637 (2000).

Recommendation Requirements (FOC Deviation): - When conducting a Support Investigation, if the FOC determines from the facts that the formula has an unjust or inappropriate result and recommends an alternative amount, the FOC’s recommendation and report must include specific information. MCL 552.505(1)(h) (i)-(iv).

- Discharge of Arrears – see Support—Arrears Repayment Plans

- High Income Cases: See MCSF section 3.04 and Michaluk v Whitton. When a high support amount calculated by MCSF creates an unjust or inappropriate result, the court appropriately may deviate when it exceeds the amount needed to maintain the child in a reasonable standard of living. Michaluk The deviation criterion MCSF 1.04(D)(5)(h) says “One or both parents earn incomes of a magnitude not fully taken into consideration by the formula.”

Hidden Alimony: Some argue that most support payments contain hidden alimony for the custodial household, because in order to raise the child standard of living the entire household has to see some change. It would be impossible to not economically impact the entire household, when you raise the child’s standard of living. The only way to do so would be to the child out of that household or have the payee living elsewhere.

All a parent should be required to pay is a fair share of the costs actually necessary to maintain the child at a reasonable living standard. Kalter v. Kalter, 155 Mich. App. 99(1986)

The reasonable needs of the child must govern the child support determination in high income cases. Support that exceeds a child’s reasonable needs cannot stand for three reasons: (1) such support constitutes the distribution of the obligor parent’s estate [hidden alimony]; (2) such support provides an inappropriate windfall to the child; (3) such support may infringe upon a parent’s right to direct the lifestyle of his or her children. Laura W. Morgan, Child Support Guidelines: Interpretation and Application § 4.07[b][2]

The manual does not specify what the magnitude is, however, given how the numbers were originally derived for the base support tables it lies well above the highest income level in the General Care Support Table. [It is a ways above the top income level listed (e.g. 2 x top level). Basically, there are so few people that earn that type of money included in the national averages those figures are based on.]

- Laura Wish Morgan’s Web Article http://www.childsupportguidelines.com/articles/art200109.html

- Imputation of Income – Means to treat someone as having income, when they do not, based on a voluntary reduction of income or voluntary unexercised ability to earn. (MCSF 2.10) When imputing, the court must base imputed income on an actual ability and likelihood of earning that income, and must consider all of the imputation factors contained in the formula manual. Ghidotti v. Barber 459 Mich 189 (1999)

- Incarcerated, while parent is – Prior to the McLauglin decision, a parent incarcerated for crimes other than non-support were not liable for support during periods of incarceration, unless affirmatively shown that they have income or assets to make such payments. Pierce

MCL 552.603(2) does not permit retroactive modification for periods prior to notice to the other party. McLauglin (2003)

A parent incarcerated for criminal non-support is not entitled to any modification for periods of incarceration. Pierce

MCL 552.517 requires that the friend of the court initiate a review of support within 14 days after receiving information that a recipient or payer is incarcerated (or upon release) after a criminal conviction and sentencing to a term of more than 1 year.

MCL 552.603d permits the discharge of surcharge. A repayment plan could be crafted to allow an inmate a minimal or post-release payment and have surcharge wiped out.

Withholding from Inmate’s Account (See Income Withholding – Inmate’s Account)

- Income, Ability to Earn

- Being labeled “disabled” for the purpose of receiving SSI benefits does not mean that a person is unable to earn any income [for the child support purposes]; only that he is unable to meet the federal government’s “minimum income level”. Betters v Betters, COA unpublished opinion 211529 (2/11/2000)

- Factors to consider – When imputing, in addition to the criteria listed in MCSF, Ghidotti v. Barber 459 Mich 189 (1999) includes consideration of criteria listed in Sword v Sword, 399 Mich 367, 378-379 (1976).

- Income, Military/Service Member –Service Member’s Income – Income for purpose of calculating support includes consideration of BAH.

JAG Attorney claimed DOD Vol 7A Chapter 43 Sect. 4304 prohibited inclusion of BAH as income when calculating support for E6 ranks or lower (430403.E (page 43-8)). That is not true for several reasons:

o The section cited does not pertain to how to calculate the income used to set an obligation; rather it discusses the income used to calculate the maximum allotment (i.e., maximum amount withheld). The sections definitions (430302) cite 42 USC 665 which shows that it applies the CCPA [(15 USC 1673)] into military terms.

o Federal military regulations do not control a state's judiciary.

o MI enacted legislation, as required in 42 USC 667 that mandates use of a statewide guideline to support. Our guideline, MCSF 2.01, clearly allows inclusion of allowances for housing, rations, and specialty pay.

o JAG internet site https://www.jagcnet.army.mil/Legal under Family Matters: > Child & Family Support has some Q and A on the topic and also references Army Reg 608-99. Basically, if a court orders support, to the extent possible, the soldier must comply with it or face criminal charges (2-4). Sect 2-6 establishes how to calculate a soldier’s support amount absent of a court order or written agreement; the calculation prorates BAH-II across all dependents. To claim BAH is excluded from income used to set support obligations would meant the Army violates its own regulation.

Laura Wish Morgan Article, A Guide to Child Support Enforcement and Military Personnel by Maj. Michael Bohman, JAG School – US Army http://www.supportguidelines.com/articles/art200303.html

Income, Taxes – A court must use actual taxes when based on actual (not imputed) income. Actual taxes are best determined from the tax returns; however, software tax calculations are sufficiently accurate to determine what taxes will be (since individual income changes from year to year).

When including depreciation tax deductions in child support income, a court must use actual taxes not theoretical taxes. “When there is actual taxation on income, the amount of the deduction in calculating child support is the amount taxed, no more, no less.” Theoretical tax deductions do not meet the statutory requirement to base support on the “actual resources of the parent”, and the formula manual does not contain conditional language that allows for adjustment of the taxes actually incurred. Peterson v Peterson, COA 260591 (10/24/06) You can continue to calculate taxes on taxable income, however, monies treated as income for child support calculations that is not considered for the purpose of taxation merely needs to be treated as tax free income. The Peterson case should not preclude you from using software calculations, nor bind you to always getting actual taxes from an individual's return.

- Income, Tribal - Native American tribal distribution of income (e.g., per capita distribution to qualifying members of gaming revenue) payments fit the statutory definition of income (MCL 552.602(n)), and therefore the amount a qualifying parent receives counts as that parent’s income when setting child support (MCSF 2.01(F)).

Children: This tribal payment received by/for the children qualifies as children’s income, and does not count as either parent’s income (MCSF 2.03). The formula does not allow deduction of the tribal payment to the children from a parent’s support obligation, nor its addition to a parent’s household income. The children do not receive payments on a parent’s behalf, rather based on their own qualification as a tribal member. (e.g. If a parent met the minimum qualification, 1/8th tribal heritage, children conceived with a non-tribal member would not qualify because 1/16th tribal heritage.)

- Interest on Support Arrears – Surcharge was intended to act, as a penalty for unpaid support in many respects, but by definition, statutorily is not interest. MCL 552.603(8) bars assessing interest against child support arrears based on Michigan issued orders. Judgment interest was assessable under Langford until the statutory bar became effective 2/16/1996 (PA 25 of 1996).

UIFSA defines support to include interest, and is therefore enforceable when included based on orders issued in states that allow interest and based on the rates established by the issuing state.

- Investigation – MCL 552.505(1)(h) When ordered by the court, the FOC has a mandatory duty to investigate the relevant facts and make a written recommendation. The office must use the MCSF, and its report must include the amount determined by formula and all assumptions upon which the amount is based.

The FOC must provide copies of the report and recommendation to the parties, their attorneys, and the court. The court’s copy must be placed in the court file.

Investigations may include reports and evaluations by outside entities, if requested by the parties or the court, and shall include documentation of alleged facts.

When the result has an unjust or inappropriate result, the FOC should make an alternative recommendation. (See Deviation - Recommendation Requirements)

- Lump Sum Obligations – Orders- meanings for installments; MiCSES treats lump sum obligations as due immediately but payable in installments. SCAO ADM 2004-04 and Model LAO 21 FAQ 2004-02

- Medical Support Policy ADM 2004-14

- Medical Support Policy for Friends of the Court ADM 2005-03

- Modification, All Parties Left Michigan. Once all the parties and children have left MI, due to a loss of subject matter jurisdiction under UIFSA and preclusion under FFCCSOA, MI courts should not seek or make modification in cases where they had jurisdiction to modify. See ModAllLeftMI.pdf.

- Modification, Change of Circumstances. The trial court must consider all the facts and circumstances claimed, and determine whether change is sufficient to warrant modification of the order (Sharp v Talsma). Change in FOC recommendation sufficient change (Calley v Calley).

MCL 552.17 - The court may revise or alter the [divorce] order ". . . as the circumstances of the parents, and the benefit of the children require."

- Modification, Retroactive. See Support – Retroactive Modification

- Monthly Amounts MCL 552.605c (1) Orders must be stated as monthly; orders not stated as monthly converted using SCAO formula. MCL 552.605c(3) requires prorating monthly support amounts based on daily amounts if a support order changes an amount on a day other than the first of a month either initially or when modified, or if the obligation ends on a day other than the last of a month.

MCSF 4.05(A) contains Monthly Conversion Factors (4.35 weeks).

MCSF 4.05(B) says to multiply monthly amounts by .033 to get a daily amount.

MCSF 4.05(C) contains equation to prorate midmonth changes.

Excel Spreadsheet for converting and prorating

Original policy documents and background: FAQ 2003-01 SCAO ADM 2002-10

- Obligation to Support. Parents have an inherent obligation to support his child. Westerman The parents have an obligation to support and maintain a child unless (1) a court modifies or terminates the obligation or (2) the child is emancipated. Even if parental rights are terminated, absent adoption, the obligation to support a child remains with the natural parents. Evink

- Parenting Time Abatements - MCSF 3.06 allows for the 50% abatement of base support when payer spends six consecutive overnights with the children. Every support order not calculated using shared economic formula should contain a provision allowing for the 50% abatement following the conclusion of parenting time. Abatements can only be given when the support order contains a provision. Offices may have local policies establishing parameters for requesting abatements and internal processes.

- Parenting Time Abatement Policy – ADM 1998-09 policy on Surcharge suggests each court should establish a local policy requiring submission of parenting time abatement requests to the FOC within 6 months of the end of the parenting-time period. This prevents adjusting account arrears for more than one surcharge cycle, which provides safeguards so amounts submitted for tax offsets and assures overall account accuracy. It also eliminates clients "holding" such credits for several months or years before requesting credit.

- Purpose of Support – The purpose of child support is to provide for the needs of a child. Westerman

- Redirection of Support Payments MCL 552.605d requires for the administrative redirection of support to the state when the child under the State’s jurisdiction and placed in foster care. The FOC may redirect support to a person who becomes “legally responsible” for the actual care, support, and maintenance of a child for whom support is paid. SCAO ADM 2005-04

Legally responsible for the actual care, support and maintenance of a child includes (1) a guardian appointed by the probate court, (2) person with whom the court places the child pursuant to an order, and (3) a third party with a power of attorney executed by the child’s parent or guardian pursuant to MCL 700.5103 giving legal responsibility for the child.

The redirection to the State takes precedence over redirection to another legally responsible person.

Redirection does not permit anyone (e.g., private collection agency) to change the payee from the ordered recipient or person qualifying as legally responsible for a child to another person or agency, or a joint payee situation. (Pg. 2 http://courts.michigan.gov/scao/resources/other/scaoadm/2001/2001-08.pdf)

Statue requires that all orders effective after 6/1/2003 contain abatement and redirection language. All orders effective prior to 6/1/2003 contain those provisions by operation of law.

- Repayment Plans – see Support—Arrears Repayment Plans

- Required Use of Formula. MCL 552.605(2)

- Retroactive Modification - Retroactive modification of a support order is permissible for the period during which there is pending a petition for modification, but only from the date that notice of the petition was given to [the other party]. MCL 552.603(2)

The statutory limitation on retroactive modification of child support orders applies to increases and decreases alike. Harvey v Harvey 237 Mich App 432

Retroactive Modification Limit: A trial court may order a retroactive increase in child support effective the date (or any subsequent date) the petition to modify was filed and notice petition was given to the non-moving party of support; retroactive modification for periods prior to the date of notice of the petition is prohibited. (Waple v Waple)

Court lacks the discretion to modify accumulated support arrearages (including surcharge) retroactively. (Adams v Linderman)

Retroactive credits waiving support given for the periods of incarceration were allowed under Pierce v Pierce, in 2003 in McLauglin found that MCL 552.603(2) does not permit retroactive modification for periods before the other party was served with a petition to modify.

- Statute of Limitations – Civil Enforcement MCL 600.5809(4) 10 years from the date that the last support payment is due under the support order whether or not the payment was made. 1996 PA 275 amended this section effective January 1, 1997.

Statute of Limitations is an affirmative defense and must be raised to use after the limitation period (or renewed period) has run. The FOC generally should not raise (advocate) it on a payer’s behalf.

However, the COA determined the amendment does not apply retroactively and that the pertinent section of the statute that applies is determined by the date the youngest child turned eighteen in cases before the statute was amended (1997). Rzadkowolski v Pefley, 237 MichApp 405, 411 (1999)

Any payments on a child support debt, whether before or after the running of the period of limitations, acts to extend the limitations period. (DSS v Yates)

- Tribal Income / Profit Sharing – See Support – Income, Tribal

Surcharge

- Semi-annual charge assessed 1/1 and 7/1 on all past due amounts -- removes current month’s charge MCL 552.603a. Stops compounding 7/1/04 (effective date was after 1/1/04).

- Defined as “support” MCL 552.602(ee) and not the same as “interest”

- Court cannot modify (Adams v Linderman)

- Interstate - Surcharge can only be assessed on “amounnts shown as due and owing on the records of the friend of the court.” Therefore, surcharge can only be applied to interstate cases where the friend of the court is the official custodian of the records (issued order and retains continuing exclusive jurisdiction). Responding UIFSA establishment and responding registrations for modification cases are surcharged, registration for enforcement are generally excluded unless MI subsequently modifies the order.

- Surcharge on Support Arrears Policy SCAO ADM 1998-09

Tax Offset

- Federal Authority – 45 CFR 303.72

Tax Returns

- Information security and safeguards- Tax Information Security Guidelines for Federal, State, And Local Agencies: Safeguards for Security Federal Tax Returns and Return Information. IRS Publication 1075. Record Keeping Requirements - IRC 6103(p)(4)(A); Secure Storage - IRC 6103(p)(4)(B), including minimum protection standards, information security, and computer security; and Restricting Access - IRC 6103(p)(4)(C).