October 15, 2008, Introduced by Rep. LeBlanc and referred to the Committee on Families and Children's Services.
A bill to amend 1982 PA 294, entitled
"Friend of the court act,"
by amending sections 17, 17b, and 19 (MCL 552.517, 552.517b, and
552.519), as amended by 2004 PA 207, and by adding section 17f.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 17. (1) After a final judgment containing a child support
order has been entered in a friend of the court case, the office
shall periodically review the order, as follows:
(a) If a child is being supported in whole or in part by
public assistance, not less than once each 36 months unless the
order has been adjusted within the previous 36 months under section
17f or unless both of the following apply:
(i) The office receives notice from the department that good
cause exists not to proceed with support action.
(ii) Neither party has requested a review.
(b) At the initiative of the office, if there are reasonable
grounds to believe that the amount of child support awarded in the
judgment should be modified or that dependent health care coverage
is available and the support order should be modified to include an
order for health care coverage. Reasonable grounds to review an
order under this subdivision include temporary or permanent changes
in the physical custody of a child that the court has not ordered,
increased or decreased need of the child, probable access by an
employed parent to dependent health care coverage, or changed
financial conditions of a recipient of support or a payer
including, but not limited to, application for or receipt of public
assistance, unemployment compensation, or worker's compensation; or
incarceration or release from incarceration after a criminal
conviction and sentencing to a term of more than 1 year. Within 14
days after receiving information that a recipient of support or
payer is incarcerated or released from incarceration as described
in this subsection, the office shall initiate a review of the
order. A review initiated by the office under this subdivision does
not preclude the recipient of support or payer from requesting a
review under subdivision (d).
(c) At the direction of the court.
(d) Upon receipt of a written request from either party.
Within 14 days after receipt of the review request, the office
shall determine whether the order is due for review. The office is
not
required to investigate more than 1 request received from a
party
each if within the previous 36 months
the party has requested
an adjustment or the order has been adjusted under section 17f.
(e) If a child is receiving medical assistance, not less than
once
each 36 months unless either 1
or more of the following
applies
apply:
(i) The order requires provision of health care coverage for
the child and neither party has requested a review.
(ii) The office receives notice from the family independence
agency that good cause exists not to proceed with support action
and neither party has requested a review.
(iii) The order has been adjusted within the previous 36 months
under section 17f.
(f) If requested by the initiating state for a recipient of
services in that state under title IV-D, not less than once each 36
months, unless the order has been adjusted within the previous 36
months under section 17f. Within 14 days after receipt of a review
request, the office shall determine whether an order is due for
review.
(2) Within 180 days after determining that a review is
required under subsection (1), the office shall send notices as
provided in section 17b, conduct a review, and obtain a
modification of the order if appropriate.
(3) The office shall use the child support formula developed
by the bureau under section 19 in calculating the child support
award.
(4) The office shall petition the court if modification is
determined under this section to be necessary unless either of the
following applies:
(a) The difference between the existing and projected child
support award is within the minimum threshold for modification of a
child support amount as established by the formula.
(b) The court previously determined that application of the
formula was unjust or inappropriate and the office determines that
the facts of the case and the reasons for and amount of the prior
deviation remain unchanged.
(5) The notice under section 17b(3) constitutes a petition for
modification of the support order and shall be filed with the
court.
(6) If the office determines there should be no change in the
order and a party objects to the determination in writing to the
office within 21 days after the date of the notice provided for in
section 17b(3), the office shall schedule a hearing before the
court.
(7) If a support order lacks provisions for health care
coverage, the office shall petition the court for a modification to
require that 1 or both parents obtain or maintain health care
coverage for the benefit of each child who is subject to the
support order if either of the following is true:
(a) Either parent has health care coverage available, as a
benefit of employment, for the benefit of the child at a reasonable
cost.
(b) Either parent is self-employed, maintains health care
coverage for himself or herself, and can obtain health care
coverage for the benefit of the child at a reasonable cost.
(8) The office shall determine the costs to each parent for
dependent health care coverage and child care costs and shall
disclose those costs in the recommendation under section 17b(3).
Sec.
17b. (1) Child Except as
provided in section 17f, child
support
orders entered after the effective date of the 2004
amendatory
act that added subsection (8) June 30, 2005 shall be
modified according to this section. For each support order entered
before
the effective date of the 2004 amendatory act that added
subsection
(8) June 30, 2005, the friend of the court office shall
provide notice to the parties of their right to a review under this
section as required by federal law. Notices under this subsection
may be placed in court orders as allowed by federal law.
(2)
The Except for proceedings
under section 17f, the friend
of the court office shall initiate proceedings to review support by
sending a notice to the parties. The notice shall request
information sufficient to allow the friend of the court to review
support, state the date the information is due, and advise the
parties concerning how the review will be conducted.
(3)
After the information in requested
under subsection (2) is
due, but not sooner than 21 days or later than 120 days after the
date the notice is sent, the friend of the court office shall
calculate the recommended support amount in accordance with the
child support formula and send a notice to each party and his or
her attorney, which shall include all of the following:
(a) The amount calculated for support.
(b) The proposed effective date of the support amount.
(c) Substantially the following statement: "Either party may
object to the recommended support amount. If no objection is filed
within
21 days of after the date this notice was mailed, an order
will be submitted to the court incorporating the new support
amount." The notice also shall inform the parties of how and where
to file an objection.
(4) Twenty-one or more days from the date the notice required
by subsection (3) is sent, the friend of the court office shall
determine if an objection has been filed. If an objection has been
filed, the friend of the court shall set the matter for a hearing
before a judge or referee or, if the office receives additional
information with the objection, it may recalculate the support
amount and send out a revised notice in accordance with subsection
(3).
If no an objection is not filed, the friend of the
court
office shall prepare an order, which the court shall enter if it
approves of the order.
(5) The friend of the court may schedule a joint meeting
between the parties to attempt to expedite resolution of support
issues
in accordance with the guidelines set forth in developed
under section 19(3)(m). The joint meeting and proceedings following
the joint meeting are subject to the requirements of section 42a of
the support and parenting time enforcement act, MCL 552.642a.
(6) The following provisions apply to support review
proceedings under this section:
(a) A recommendation under subsection (3) shall state the
calculations upon which the support amount is based. If the friend
of the court office recommends a support amount based on imputed
income, the recommendation shall also state the amount that would
have been recommended based on the actual income of the parties if
the actual income of the parties is known. If income is imputed,
the recommendation shall recite all factual assumptions upon which
the imputed income is based.
(b) The friend of the court office may impute income to a
party who fails or refuses to provide information requested under
subsection (2).
(c) At a hearing based on an objection to a friend of the
court office recommendation, the trier of fact may consider the
friend of the court office's recommendation as evidence to prove a
fact
relevant to the support calculation when if no other evidence
is presented concerning that fact, if the parties agree, or if no
objection is made to its use for that purpose.
(7) The court shall not require proof of a substantial change
in circumstances to modify a child support order when support is
adjusted under section 17(1).
(8) A party may also file a motion to modify support. Upon
motion of a party, the court may only modify a child support order
upon finding a substantial change in circumstances, including, but
not limited to, health care coverage becoming newly available to a
party
and a change in the support level under section 17(4)(a)
17(7)(a).
(9) Notwithstanding any other provisions of this section, the
friend of the court office shall conduct a more frequent review of
the support order upon presentation by a party of evidence of a
substantial change in circumstances as set forth in the child
support formula guidelines.
Sec. 17f. (1) Except as provided in subsection (3), a support
order that orders periodic payments shall include a provision that
every 2 years after the support order is effective, the support
amount shall be adjusted by 1 of the following cost-of-living
indices:
(a) The most comprehensive Detroit-Ann Arbor-Flint consumer
price index for all urban consumers from the United States
department of labor, bureau of labor statistics.
(b) The comprehensive Detroit-Ann Arbor-Flint consumer price
index for urban wage earners and clerical workers from the United
States department of labor, bureau of labor statistics.
(c) Another consumer price index from the United States
department of labor, bureau of labor statistics, that the court
determines to be more appropriate.
(2) An adjustment under subsection (1) shall be calculated by
using the cumulative percentage change in the applicable index for
the period since the support was established or most recently
modified.
(3) This section does not apply to a support order if the
court determines that 1 or more of the following apply:
(a) Inclusion of a cost-of-living adjustment in the order is
inappropriate because the payer's occupation or income does not
provide for a cost-of-living adjustment.
(b) The parties agree in writing that inclusion of a cost-of-
living adjustment in the order is inappropriate.
(c) The support order contains a provision, such as 1 or more
step increases, that has the effect of a cost-of-living adjustment.
(4) An adjustment to support under this section may be more or
less than the adjustment calculated using the index selected in the
support order if the parties agree in writing or if ordered by the
court.
(5) An adjustment to support under this section is effective
as follows:
(a) If the support is being paid to the title IV-D agency, on
May 1.
(b) In cases to which subdivision (a) does not apply, on the
date provided in the support order.
(6) The title IV-D agency, if the support is being paid to the
agency, or the recipient of support, in all other cases, shall send
notice of a proposed adjustment under this section to the payer 21
days or more before the proposed effective date of the adjustment.
The notice shall contain all of the following:
(a) The proposed adjusted support amount.
(b) The proposed effective date.
(c) The procedure to contest the adjustment under subsection
(7).
(7) A payer shall do both of the following to contest a
proposed adjustment under this section:
(a) File a motion contesting the adjustment with the clerk of
the court and obtain a date for a hearing on the motion before a
judge or referee.
(b) Serve the motion and a notice of hearing by first class
mail on the recipient of support and, if the notice under
subsection (6) was sent by the title IV-D agency, on the title IV-D
agency.
(8) At a hearing on a motion contesting a proposed adjustment
under this section, if the payer proves that his or her income has
not changed sufficiently to pay the adjusted support, the judge or
referee may order that the support not be adjusted, or that it be
adjusted by a smaller amount. Otherwise, the proposed adjusted
support amount is effective on the proposed effective date as
stated in the notice under subsection (6).
Sec. 19. (1) The state friend of the court bureau is created
within the state court administrative office, under the supervision
and direction of the supreme court.
(2) The bureau shall have its main office in Lansing.
(3) The bureau shall do all of the following:
(a) Develop and recommend guidelines for conduct, operations,
and procedures of the office and its employees, including, but not
limited to, the following:
(i) Case load and staffing standards for employees who perform
domestic relations mediation functions, investigation and
recommendation functions, referee functions, enforcement functions,
and clerical functions.
(ii) Orientation programs for clients of the office.
(iii) Public educational programs regarding domestic relations
law and community resources, including financial and other
counseling, and employment opportunities.
(iv) Procedural changes in response to the type of grievances
received by an office.
(v) Model pamphlets and procedural forms, that shall be
distributed to each office.
(vi) A formula to be used in establishing and modifying a child
support amount and health care obligation. All of the following
apply to the formula:
(A) The formula shall be based upon the needs of the child and
the actual resources of each parent.
(B) The formula shall establish a minimum threshold for
modification of a child support amount.
(C) The formula shall consider the child care and dependent
health care coverage costs of each parent.
(D) The formula shall include guidelines for making cost-of-
living adjustments under section 17f.
(E) The formula shall include guidelines for setting and
administratively adjusting the amount of periodic payments for
overdue support, including guidelines for adjustment of arrearage
payment
schedules when if the current support obligation for a
child terminates and the payer owes overdue support.
(b) Provide training programs for the friend of the court,
domestic relations mediators, and employees of the office to better
enable them to carry out the duties described in this act and
supreme court rules. After September 30, 2002, the training
programs shall include training in the dynamics of domestic
violence and in handling domestic relations matters that have a
history of domestic violence.
(c) Gather and monitor relevant statistics.
(d) Annually issue a report containing a detailed summary of
the types of grievances received by each office, and whether the
grievances are resolved or outstanding. The report shall be
transmitted to the legislature and to each office and shall be made
available to the public. The annual report required by this
subdivision
shall include, but is not be
limited to, all of the
following:
(i) An evaluative summary, supplemented by applicable
quantitative data, of the activities and functioning of each
citizen advisory committee during the preceding year.
(ii) An evaluative summary, supplemented by applicable
quantitative data, of the activities and functioning of the
aggregate of all citizen advisory committees in the state during
the preceding year.
(iii) An identification of problems that impede the efficiency
of the activities and functioning of the citizen advisory
committees and the satisfaction of the users of the committees'
services.
(e) Develop and recommend guidelines to be used by an office
in determining whether or not parenting time has been wrongfully
denied by the custodial parent.
(f) Develop standards and procedures for the transfer of part
or all of the responsibilities for a case from one office to
another in situations considered appropriate by the bureau.
(g) Certify domestic relations mediation training programs as
provided in section 13.
(h) Establish a 9-person state advisory committee, serving
without compensation except as provided in subsection (4), composed
of the following members, giving preference to a member of a
citizen advisory committee:
(i) Three public members who have had contact with an office of
the friend of the court.
(ii) Three attorneys who are members of the state bar of
Michigan and whose practices are primarily domestic relations law.
Not more than 1 attorney may be a circuit court judge.
(iii) Three human service professionals who provide family
counseling.
(i) Cooperate with the office of child support in developing
and implementing a statewide information system as provided in the
office of child support act, 1971 PA 174, MCL 400.231 to 400.240.
(j) Develop and make available guidelines to assist the office
of the friend of the court in determining the appropriateness in
individual cases of the following:
(i) Imposing a lien or requiring the posting of a bond,
security, or other guarantee to secure the payment of support.
(ii) Implementing the offset of a delinquent payer's state
income tax refund.
(k) Develop and provide the office of the friend of the court
with all of the following:
(i) Form motions, responses, and orders for use by an
individual in requesting the court to modify his or her child
support,
custody, or parenting time order, or in responding to a
motion for modification, or in giving a notice or making an
objection under section 17f without the assistance of legal
counsel.
(ii) Instructions on preparing and filing the forms,
instructions on service of process, and instructions on scheduling
a support, custody, or parenting time modification hearing or a
hearing under section 17f.
(iii) Guidelines for imputing income for the calculation of
child support.
(l) Develop guidelines for, and encourage the use of, plain
language within the office of the friend of the court including,
but not limited to, the use of plain language in forms and
instructions within the office and in statements of account
provided as required in section 9.
(m) In consultation with the domestic violence prevention and
treatment board created in section 2 of 1978 PA 389, MCL 400.1502,
develop guidelines for the implementation of section 41 of the
support and parenting time enforcement act, MCL 552.641, that take
into consideration at least all of the following regarding the
parties and each child involved in a dispute governed by section 41
of the support and parenting time enforcement act, MCL 552.641:
(i) Domestic violence.
(ii) Safety of the parties and child.
(iii) Uneven bargaining positions of the parties.
(4) The state advisory committee established under subsection
(3)(h) shall advise the bureau in the performance of its duties
under this section. The bureau shall make a state advisory
committee report or recommendation available to the public. State
advisory committee members shall be reimbursed for their expenses
for
mileage, meals, and, if necessary, lodging , under the schedule
for reimbursement established annually by the legislature. A state
advisory committee meeting is open to the public. A member of the
public attending a state advisory committee meeting shall be given
a reasonable opportunity to address the committee on any issue
under consideration by the committee. If a vote is to be taken by
the state advisory committee, the opportunity to address the
committee shall be given before the vote is taken.
(5) The bureau may call upon each office of the friend of the
court for assistance in performing the duties imposed in this
section.