WHAT DOES THE FAMILY COURT CONSIDER WHEN FIXING MY PARENTING TIME SCHEDULE?

My order says parenting time is supposed to be in frequency, type and duration so as to foster my relationship with my child. What does this mean?

At the request of either parent, the family court must give a specific schedule for parenting time. If you do not have a specific schedule and your arrangements with your ex are not working, petition the family court for one. It is your and your child’s right.

Michigan law specifies what the family court must consider.

You can read the entire Michigan Parenting Time Guideline here:

http://courts.mi.gov/administration/scao/resources/documents/publications/manuals/focb/pt_gdlns.pdf

In order to determine the length, frequency and type of parenting time, the family court considers several factors (MCL 722.27a).

1. The existence of any special circumstances or needs of the child.

2. Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.

3. The reasonable likelihood of abuse or neglect of the child during parenting time.

4. The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.

5. The inconvenience to, and burdensome impact or effect on, the child of traveling to and from the parenting time.

6. Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.

7. Whether the parent has frequently failed to exercise reasonable parenting time.

8. The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.

9. Any other relevant factors.

In order to provide the necessary structure for parenting time to occur, parenting time orders are required to be granted in specific terms if requested by a party and may contain any reasonable terms or conditions (MCL 722.27a (8)). Examples of such terms and conditions include:

1. Division of the responsibility to transport the child(ren).

2. Division of the cost of transporting the child(ren).

3. Restrictions on the presence of third persons during parenting time.

4. Requirements that the child(ren) be ready for parenting time at a specific time.

5. Requirements that the parent arrive for parenting time and return the child(ren) from parenting time at specific times.

6. Requirements that parenting time occur in the presence of a third person or agency.

7. Requirements that a party post a bond to assure compliance with a parenting time order.

8. Requirements of reasonable notice when parenting time will not occur.

9. Any other reasonable condition determined to be appropriate in the particular case.

WHEN WILL I NEED PERMISSION TO MOVE?

You need permission whenever your custody order or judgment says -- and, if your order or judgment is silent, the following laws apply:

According to Eickelberg and MCL 722.31, generally speaking, a parent must obtain the family court’s permission or the other parent’s permission to move more than 100 miles away if the parents share legal custody or physical custody. However, this rule does not apply when (a) the parents’ order sets forth a different mechanism for handling moves or (b) at the time of commencement of the action that resulted in issuing the custody order, the parties resided more than 100 miles away. In this case, the second exception applies.

So, if you were living more than 100 miles apart when the case started, the rule does not apply - interestingly, even if you move closer in the meantime.

The same is true if you and your ex do not share joint custody (legal or physical - one or the other - will do, and you must then follow the rule).

Before permitting a legal residence change otherwise restricted by the 100-mile rule, the trial court must consider five factors “with the child as the primary focus” in the deliberations:

(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.

(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

[1]

            Even if the statute did apply, a court deciding a change of legal residence motion should first determine whether the movant has shown by a preponderance of the evidence that the change is warranted based on the above factors.[3] If the movant meets this burden, the court must decide if an established custodial environment exists.[4]. If the court finds that there is an established custodial environment, the court must next decide whether the change of residence would alter that environment.[5] If the residence change will alter the established custodial environment, the movant must show by clear and convincing evidence that the move “is in the child’s best interest.”[6]

           ADDITIONALY, FOR ANY MOVE, if a move requires a modification of parenting time that results in a change in the children's custodial environment, then the court must consider the best-interest factors set forth in MCL 722.23 to determine whether the moving party proved by clear and convincing evidence that the move and consequent change in the established custodial environment and parenting time is in the children's best interests.[7]

SO, IF YOU ARE FACING A MOVE, ASK YOURSELF THESE QUESTIONS:

1. DOES THE 100 MILE RULE APPLY TO ME?

2. IF NOT, DOES THE MOVE REQUIRE THAT A CHANGE PARENTING TIME?

3. IF THE ANSWER IS YES, WILL MY PROPOSAL CHANGE CUSTODY BECAUSE MY CHILD'S ESTABLISHED ENVIRONMENT WILL ALSO CHANGE?

[1]           MCL 722.31(4).

[2]           MCL 722.31(2).

[3]           Rains v Rains, 301 Mich App 313, 326–327, 836 NW2d 709 (2013).

[4]           Id.

[5]           Id.

[6]           Id.

[7]           Rittershaus v Rittershaus, 273 Mich App 462, 465, 730 NW2d 262 (2007).

WHERE DO I GET INFO ON MAKEUP PARENTING TIME?

Michigan law, MCL 552.642,  requires each circuit to establish a makeup parenting time policy for wrongful denials of parenting time. Under the policy, the makeup parenting time must be of the same type and duration as the time denied, including weekend parenting time for weekend parenting time and holiday parenting time for holiday parenting time. The policy must provide that makeup parenting time be taken within one year after the wrongfully denied parenting time was to have occurred. The wrongfully denied parent must be given the right to choose the time of makeup parenting time but be required to notify the FOC and the other parent in writing not less than one week before the desired makeup parenting time for weekend or weekday parenting time and 28 days in advance for makeup holiday or summer parenting time.

Makeup parenting time is normally used as a remedy for violations that are not likely to recur. If the parenting time denial is severe, makeup parenting time is not usually a good remedy. For instance, makeup parenting time is not appropriate when the custodial parent has frequently denied parenting time and is likely to do so in the future. Using makeup parenting time in such a circumstance merely postpones the ultimate resolution of the issue. Makeup parenting time is also not a good remedy for cases involving domestic violence because it does not address the underlying dynamic of power and control.  For these problems, parents should seek to modify parenting time and/or child custody and for contempt sanctions.

For detailed discussion of the steps the FOC may take in enforcing custody and parenting time violations, see SCAO Administrative Memorandum 2002-11, Guidelines for Enforcement of Custody and Parenting Time Violations, available on the SCAO website.

WHAT SERVICES DOES THE FRIEND OF THE COURT PROVIDE?

If you are considering opting out of Friend of the Court services, think again -- you will be walking away from many helpful, and often free, services: 

a. Accounting Services

Friends of the court must collect support and disburse it within 48 hours. Friend of the court accounting services include:

            1) friend of the court accounting for payments received and sent,

            2) adjustments of support for parenting time or other credits,

            3) annual statements of accounts, if requested.

b. Support Enforcement Services

The friend of the court must begin to enforce support when one month of support is overdue. For friend of the court cases, child-support enforcement services include:

• paying support out of tax refunds.

• asking the court to order the nonpaying party to come to court to explain the failure to pay.

• having unpaid support paid out of property the payer owns.

• reporting support arrearage to a consumer reporting agency or requesting that the payer’s license(s) be suspended.

• collecting support by an income withholding order.

c. Medical Support Enforcement Services

The friend of the court is required to recommend how the parents divide health-care expenses and to take action to collect the amounts that a parent fails or refuses to pay. When a parent is required to insure the children, the friend of the court is authorized to instruct an employer to enroll the children in an insurance plan when the parent fails or refuses to do so.

d. Support Review and Modification Services

Once every three years, persons with friend of the court cases may request the friend of the court to review the support amount. After completing the review, the friend of the court must file a motion to raise or lower support, or inform the parties that it recommends no change. It must also review support when changed circumstances lead it to believe that support should be modified.

e. Custody and Parenting-Time Investigation Services

For disputes about custody or parenting time in friend of the court cases, the friend of the court sometimes must investigate and provide reports to the parties and the court.

f. Mediation Services

Friend of the court offices must provide mediation services to help parties with friend of the court cases settle custody and parenting-time disputes.

g. Custody and Parenting-Time Enforcement Services

For friend of the court cases, the friend of the court must enforce custody and parenting time when a party complains that it is violated. Child-custody and parenting-time enforcement services include:

• asking the court to order the noncooperating party to come to court to explain the failure to obey the parenting-time order.

• suspending the licenses of individuals who deny parenting time.

• awarding makeup parenting time.

• joint meetings to resolve complaints.

CAN I OBJECT TO THE FRIEND OF THE COURT REFEREE'S RECOMMENDATIONS FOR MY CASE?

YES, but you must object within 21 days of the date of service of the recommendation.

“A party may obtain a de novo review on any matter that has been the subject of a referee hearing and that resulted in a statement of findings and a recommended order by filing an appropriate objection.[1] Although the trial court may conduct the hearing by review of the record of proceedings with the referee, the trial court must allow the parties to present live evidence as to matters objected to.[2] The trial court may, in its discretion, prohibit a party from presenting live on findings of fact to which the party did not object and may find the referee’s findings conclusive as to matters to which neither party objected,[3] but the trial court must make independent conclusions as to matters to which a party did object.[4]


For example, in Cochrane v Brown,[5] the Court of Appeals reversed a lower court for limiting its review of a Friend of the Court recommendation following a party’s objection to the referee’s findings of fact and conclusions of law, the file and transcripts. The defendant-father objected to a referee’s recommendation denying his motion to modify custody. The lower court conducted the hearing but did not allow him to present evidence because the lower court’s administrative policy permitted review of the record alone.[6] But, a hearing as contemplated in MCR 3.215 “based solely on review of the referee’s hearing record is permissible only with the consent of all parties,” and the lower court “cannot simply adopt the referee’s recommendation without conducting its hearing de novo.”[7] The word “must” is a directive to allow live evidence.[8] ”

         

In many counties, you must also provide the transcripts for the referee's hearing. In all counties, you must file your objection citing specific errors of law and/or fact and file and serve that objection, along with a notice of hearing, on all parties (or their attorneys) of record.

You can learn more about Michigan's Friend of the Court system here: http://courts.mi.gov/administration/scao/officesprograms/foc/Pages/default.aspx

[1]               MCL 552.507(F); MCR 3.215(e)(4).

[2]               MCR 3.215(F)(1); see also Cochrane v Brown

[3]               MCR 3.215(F)(1)(a)-(c).

[4]               Drumm v Brodbeck, 276 Mich App 460; 740 NW2d 751 (2007).

[5]               234 Mich App 129; 592 NW2d 123 (1999).

[6]               Id.

[7]               Id.

[8]               Mann v Mann, 190 Mich App 526, 529; 476 NW2d 439 (1991) (citing Crampton v Crampton, 178 Mich App 362; 443 NW2d 419 (1989)).

WHAT DO I DO IF MY EX DENIES MY PARENTING TIME?

If parents do not agree to make-up parenting time, the parent who was denied parenting time must put the complaint in writing to receive assistance from the Friend of the Court. The complaint should contain the date(s) and time(s) when parenting time was denied and a brief description of the circumstances. The complaint should be filed as soon as possible, but no later than fifty-six (56) days after the violation. If a denial complaint is filed fifty-six (56) days after a violation, the Friend of the Court has discretion to decline enforcement action. If the Friend of the Court takes action, this action may include:

* a recommendation and order for make-up time

* family counseling

* a fine

* a recommendation for a contempt hearing with the judge

 

A Parenting Time Complaint form is available online at http://courts.mi.gov/Administration/SCAO/Forms/Pages/Domestic-Relations.aspx