Michigan Family Court

Bench Book

(Washtenaw County)
Family Bench Book – Table of Contents

Follow the links below to access the desired information:

FAMILY
DIVISION:

OVERVIEW
 3

MISSION
OF
THE
FAMILY
DIVISION
 3

FAMILY
DIVISION:

ATTORNEY’S
FEES
 3


FAMILY
DIVISION:

BEST
INTERESTS
OF
MINOR
CHILD
 4


FAMILY
DIVISION:

CONSENT
JUDGMENT
OF
DIVORCE
 15

REQUIREMENTS
FOR
CONSENT
JUDGMENT
OF
DIVORCE
 15


FAMILY
DIVISION:

DISCOVERY
POLICY
 17


FAMILY
DIVISION:

EMERGENCIES
 17


FAMILY
DIVISION:

MEDIATION
 18


MINOR
CHILDREN
­
CHANGE
OF
DOMICILE
 19


MINOR
CHILDREN
­
CONSENT
ORDER
APPOINTING
PARENTING
FACILITATOR
 20


MINOR
CHILDREN
­
CUSTODY
 20

BEST
INTERESTS
OF
CHILD
CHECK
LIST.
 23


FAMILY
DIVISION:

MOTION
PRACTICE
 24


FAMILY
DIVISION:

ORDER
ENTRY
 26


FAMILY
DIVISION:

PPO’S
 28


FAMILY
DIVISION:

PROPERTY
DIVISION
 30


FAMILY
DIVISION:

REFEREE
HEARINGS
 32


SPOUSE
­
REMOVAL
FROM
MARITAL
HOME
 34


FAMILY
DIVISION:

SPOUSE
SUPPORT
 35


VERIFIED
PERSONAL
FINANCIAL
STATEMENT
 37





 2

 Family Division: Overview

The Family Division of the Washtenaw County Trial Court has jurisdiction over proceedings
involving family matters. Generally speaking, the Family Division has original jurisdiction in all
divorce matters (including the Friend of the Court,) personal protection orders, name
changes, juvenile matters, probate matters, and adoptions.

Mission of the Family Division

To adhere to the mission of the Washtenaw County Trial Court and to provide families with a
variety of dispute resolution and service opportunities characterized by:
• Fair treatment of all family members.
• Timely dispositions of all family matters consistent with the circumstances of the
individual case in compliance with statutory, court rule and case law requirements.
• Enhancement of the quality of the litigation process.
• Building the public confidence in the court as an institution.

Family Division: Attorney’s Fees

Ex parte
Court rules do not specifically provide for an ex parte award of attorney fees and it is not the
practice of this county.

Motion requesting other party to pay attorney fees

To enable a party to bear the expense of the action because s/he is unable to do so without
assistance from the other.

Requirements of motion:
Must be supported by facts showing need (MCR 3.206(C)).
The Court requires a detailed outline of:
• The issues in the case.
• The necessary pretrial discovery.
• The necessary investigation, evaluation, and appraisals.
• Estimated costs and attorney fees.


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Relief
The Court may order that a necessary and reasonable sum be paid to the attorney directly by the
other spouse or out of the assets over which the court has jurisdiction. ( MCR 3.206(C); MCL
552.13, MSA 25.93).
• There is no standard fee schedule.
• The Court will seek to balance the resources available to both sides to prevent one-sided
negotiations and trial preparations and to promote settlement.
• If the resources are balanced, both spouses are apt to realize that they can settle some or
all of their issues rather than spend all of their resources on a fight.
• Consideration must be given to the contemplated expense vis à vis the importance and
complexity of the issues and the value of the marital estate and income of the parties.
• The Court might inquire if the opposing spouse's lawyer has received a retainer. If so, the
court may equalize the retainers and disbursements.
• The Court may also set aside assets for costs and fees for one or both parties.
The Court may also establish a fund for litigation from which both counsel must agree to
payments for costs and fees.

Family Division: Best Interests of Minor Child

Trial courts are required to make "best interests" findings of fact in each of the following
circumstances: [Probate Court and Family Division of Circuit Court (ancillary
jurisdiction)]:(2)
(1) when a parent seeks to terminate a full minor guardianship;(2) when a parent or the
sole parent with right to custody seeks to terminate a limited minor guardianship and the
parent has not substantially complied with the limited guardianship placement plan;(3)
when the court, following a review if it is in the best interests of the minor child, decides
to terminate the guardianship;(4) visitation requests;(5) requests for removal of a
guardian, and [Family Division of the Circuit Court];(6) custody and parenting time
decisions. Best interests of the child are defined in the Child Custody Act of 1970, MCL
722.23. This grid may be of help to you in making the required determinations, keeping
in mind, as was stated in Lustig v. Lustig, 99 Mich. App. 716 (1980), "[This]
determination is much more difficult than merely tallying runs, hits, and errors in box
score fashion following a baseball game."(3)
Is there a custody order now in place? If the order is short term or temporary, proceed to
"Established Custodial Environment." If the order is long term or permanent, determine whether
either a proper cause or a change in circumstances has been shown.(4)
Has a proper cause or a change in circumstances been shown? (See footnote 4.) If Yes,
proceed to the next question. If No, stop.


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Is there an "Established Custodial Environment"? Note: If the answer is "Yes," the standard
of proof for changing custody is "clear and convincing evidence". If the answer is 'No," the
standard of proof in determining the best interests of the minor child is "preponderance of the
evidence.(5)" The following factors have been identified by the appellate courts as relevant to
this determination:
Is there a previous custody order?
Time: Has the child been with present custodian for significant duration during which
child is given :
• parental care
• discipline
• love
• guidance
• security
• stability
• permanence
(A) The love, affection, and other emotional ties existing between the parties involved and the
child.(6)
• Meal Preparation
• Bonding with and relationship to competing parties; to whom is the child bonded?
• When child has a problem, to whom does the child speak?
• When child has a triumph, to whom does the child speak?
• Who spends more hours per day with the child?
• Statements of child indicative of bonding.
• Ability to separate child's needs from one's own; empathy with child.
• To whom does child openly show signs of affection?
(B) The capacity and disposition of the parties involved to give the child love, affection, and
guidance and to continue the education and raising of the child in his or her religion or creed, if
any.(7)
• Who bathes and dresses the child?
• Who stays home from work when the child is sick?
• Who takes responsibility for involvement in academic affairs?
• Who takes responsibility for involvement in extracurricular activities?
• Who disciplines the child?
• Who uses preferable discipline techniques?
• Who has preference because of the others verbal abuse, substance abuse, or arrest record?
• Who has preference because of ability to provide the child access to extended family?


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 • Are there other children, including children not a part of this litigation, whose custody
should impact upon the court's decision in this case?
(C) The capacity and disposition of the parties involved to provide the child with food, clothing,
medical care, or other remedial care recognized and permitted under the laws of this state in
place of medical care, and other material needs.(8)
• Who makes purchases for the child?
• Who attends to special needs of the child?
• Who has greater earning capacity?
• Who adjusts working hours based on the needs of the child?
• Who has certainty of future income?
• Who has ability to provide insurance for the child?
• Who attends classes for professional involvement?
• Who has requisite knowledge to meet the needs of the child?
• Who schedules and takes child to medical appointments?
• Who schedules and takes child to dental appointments?
• Who arranges for and supervises child care?
Note: Seasoned observers point out that rarely is this factor decisive at the time the case comes
before the court. Reason: the court can adjust economic differences with its support orders. The
cases in endnote 8 should be read to get a flavor of how the Court of Appeals views this factor.
(D) The length of time the child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity.(9)
• Who can provide a safe environment?
• Who can provide continuity?(10)
(E) The permanence, as a family unit, of the existing or proposed custodial home or homes.(11)
In whose custody will the family unit not be split? The issue is not an "acceptability of
the custodial home" standard. See Fletcher v. Fletcher, 200 Mich. App. 505, 513 (1993),
447 Mich 871 (1994).
(F) The moral fitness of the parties involved.(12)
Who has priority as a result of other party having an extramarital affair known by the
children? Caution: See Fletcher discussion in footnote 12 below.
• Verbal abuse
• Drinking problem
• Driving record
• Physical or sexual abuse of the child
• Other illegal or offensive behaviors
Note: The elements set forth under this factor illustrate the dangers of the use of checklists in
making best interests determinations. Caution: the thrust of all inquiries about the behavior of


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the contestants should be directed toward the effect of such behaviors upon the child, or as the
Supreme Court stated in Fletcher: does the behavior complained of have a significant influence
on how one will function as a parent?
(G) The mental and physical health of the parties.(13)
Physical or mental health problem that significantly interferes with ability to safeguard
the child's health and well being.
Age of contestant compared to age of the child; would energies of the child overwhelm
the contestant?
(H) The home, school, and community record of the child.(14)
• Who can provide leadership to attend school?
• Who can provide leadership in extracurricular activity participation?
• Who is actively involved in school conferences, transportation, and attendance at school
events?
• Who can more adequately assist either reducing necessity for other agency involvement
(Juvenile Court, FIA) or if other agency is involved who can cooperate more fully?
• Who can more adequately assure child's access to friends and peers useful for the child's
development?
• Who can more adequately plan and supervise the child's undertaking of home
responsibilities that are appropriate to the child's age and circumstances?
• Who takes responsibility for completion of school assignments?
(I) The reasonable preference of the child, if the court considers the child to be of sufficient age
to express a preference.(15)
• Whom does the child favor?
Note: Is this factor to be given strong consideration, based upon intelligent, unbiased, child in
interview who uses relevant, important factors? See Wilson v. Gauck, 167 Mich. App. 90 (1988);
Flaherty v. Smith, 87 Mich. App. 561 (1978); In Re Custody of James B., 66 Mich. App. 133
(1975); Lewis v. Lewis, 73 Mich. App. 563 (1977). The court should articulate how much
emphasis it is placing on this factor. Age, maturity, cohesiveness of reasoning, existence of
external pressure, and continual "flip-flopping" in preferences are all relevant.
(J) The willingness and ability of each of the parents to facilitate and encourage a close and
continuing parent-child relationship between the child and the other parent.(16)
• Who can best cooperate with an appropriate visitation schedule by the other party?
• Who is least likely to disparage the other parent in the presence of the child based upon
past performance?
(K) Domestic violence, regardless of whether the violence was directed against or witnessed by
the child.(17)
Have there been incidents of violence in the home by any party against any party? If so,
has there been a police report, arrest, or conviction? Has there been a pattern of violence
whether reported or not reported?


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(L) Any other factor considered by the court to be relevant to a particular dispute regarding
termination of a guardianship, removal of a guardian, or visitation.(18)
• Who can most likely address the special needs of the child?
• Threats of kidnapping.
• Excessive time involved in traveling for the child.
• Record of failure to exercise visitation, failure to notify, failure to return the child.
• Failure to complete court reports; investigation reveals unsatisfactory conditions.
• Are there other children, whether a part of this litigation or not, whose custody is relevant
to this child's best interests?
• Are there significant others or new spouses whose relationship with the child affects the
child's best interests?

Endnotes
1. The author, Hon. John N. Kirkendall, gratefully acknowledges contributions from the
following lawyers and judges: Craig S. Ross, Esq., Washtenaw County Friend of the
Court's Office; Norman N. Robbins, Esq., domestic relations practitioner, author and
lecturer; Hon. Bruce A. Newman, Genesee County Probate Judge; Hon. Joan E. Young,
Oakland County Circuit Judge; and Monika H. Sacks, domestic relations practitioner,
author and lecturer. They have reviewed the chart and suggested additions and
improvements. I thank Stuart D. Lurie, law clerk, who has helped revise the chart since
its first publication. Errors are mine. The chart should be viewed as "evolving", not
"finished." Therefore, the reader's suggestions and comments will be helpful.
2. MCL 600.1021; 600.841. Some early cases also applied "best interests" standards in
reviewing a custodial parent's request to change the domicile of a minor child. Panels of
the Court of Appeals have most recently adopted the test formulated in D'Onofrio v
D'Onofrio, 144 NJ Super 200, 365 A2d 27 (1976). See Mills v Mills, 152 Mich App 388
(1985); Dick v Dick, 147 Mich App (1985); Bielawski v Bielawski, 137 Mich App 587
(1984); Scott v Scott, 124 Mich App 448 (1983); Henry v Henry, 119 Mich App 319
(1981). The latest line of Michigan cases rejected the "best interests of the child" test
applied earlier in the cases of Watters v Watters, 112 Mich App 1 (1981) and Hutchins v
Hutchins, 84 Mich App 236 (1978). The D'Onofrio test is, generally, will the proposed
move 1) improve quality of life of child and parent; 2) allow reasonable opportunity for
visitation to preserve parental relationship; and is move 3) inspired primarily by desire to
defeat visitation 4) inspired by desire for financial advantage with respect to child support
obligations. Emphasis rather than being on the best interests of the minor child, is now
"what is in the best interests of the new family unit, i.e. custodial parent and child." See
Fred Morganroth, "Changing the Minor Child's Domicile -- Some New Considerations,"
Michigan Family Law Journal, Special Addition, Child Custody (spring, 1996).
3. Lustig and Baker v Baker, 411 Mich. 567 (1981) are cases affirmed on appeal where a
less than full fact finding was undertaken by the trial court. The Baker court said,
"Neither the Child Custody Act nor the General Court Rules require a trial court deciding
a child custody dispute to comment upon every matter in evidence or declare its


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 acceptance or rejection of every proposition argued by the parties." The Child Custody
Act directs a trial court to award custody after evaluation and consideration of particular
factors which are prescribed by statute. Lewis v Lewis, 73 Mich. App. 555 (1977).
Fletcher v Fletcher, 200 Mich. App. 505 (1993), explains that courts must truly do a
balancing of the factors, that is, list both the strengths and weaknesses of each party on
each issue--not just the strengths of one. On appeal, [Fletcher v Fletcher 447 Mich 871
(1994),] the court reverses and remands on other grounds.
4. Rossow v Aranda, 206 Mich App 456, 458 (1994). " MCL 722.27(1)(c); MSA
25.312(7)(1)(c) evinces the Legislature's intent to condition a trial court's reconsideration
of the statutory best interest factors on a determination by the court that the party seeking
the change has demonstrated either a proper cause shown or a change of circumstances. It
therefore follows as a corollary that where the party seeking to change custody has not
carried the initial burden of establishing either the proper cause or a change of
circumstances, the trial court is not authorized by statute to revisit an otherwise valid
prior custody decision and engage in a reconsideration of the statutory best interest
factors. See MCL 722.27(1)(c); Schubring v Schubring, 190 Mich App 468 (1991); Mann
v Mann, 190 Michigan 526 (1991). In an unpublished case (Kuehnle v Kuehnle,
unpublished opinion per curiam of the Court of Appeals, decided July 2, 1996, Docket
No. 184220) the Court of Appeals found effective denial of visitation rights a proper
cause for modification of a judgment. In Kuehnle visitation was subverted by placing
numerous conditions on the one month's visitation provision. In Schubring, the court
found that a father's contemplated move to Florida with the minor child constituted a
change of circumstances sufficient for the court to revisit the issue of custody. Dehring v
Dehring, 220 Mich 163 (1996) points out that an intrastate change in the children's
domicile, by itself, does not constitute proper cause or change of circumstances upon
which to base a change in custody.
5. There are two separate levels of sufficiency of evidence for "best interests" findings of
fact. When there is an established custodial environment, clear and convincing evidence
is the standard. McMillan v McMillan, 97 Mich. App. 600 (1980). If there is no
established custodial environment, the standard is preponderance of evidence. Lewis v
Lewis, 138 Mich. App. 191 (1984). See footnote 18.
6. It should probably come as no surprise that trial courts often find the parties equal on this
factor. Both parties are struggling to receive custody of the child and therefore have
strong emotional ties to the child.
7. Harper v Harper, 199 Mich. App. 409 (1993) states that the court may consider
disciplinary techniques of the parties toward the minor child. Here where one party used
his hand in discipline and the other used a paddle, this could be used against the party
using the paddle. There was testimony by an expert also that the paddle using party was
unable to guide children in a joint task during a session being observed while the other
party was able to provide the leadership and direction to assist the children to accomplish
the goal.
8. Harper v Harper, 199 Mich. App. 409 (1993). Income, employment history, certainty of
future income and financial position are factors to be weighed. Mazurkiewicz v
Mazurkiewicz, 164 Mich. App. 492 (1987) weighed husband's income in his favor over


 9

 objection of wife that because she was a homemaker she could never prevail on this
factor. Court agreed but stated the trial court did not unduly stress this factor. In Dempsey
v Dempsey, 409 Mich. 495 (1980), the Supreme Court agreed that the trial court placed
undue emphasis on economic factors in awarding custody. The cases are strongly
suggestive that while this factor must be weighed, the court must use care in not placing a
good deal of reliance upon economic factors in making a custody decision. Bowers v
Bowers, 198 Mich. App. 320 (1993) states that eligibility for health insurance, taking
managerial classes, and informing other party of insurance benefits for children are all
relevant facts to consider. (The court here also referred to a tug of war by the parties over
child's clothing.)
9. Bahr v Bahr, 60 Mich. App. 354 (1975). Children 13, 12, and 8 were with non-parent
custodians for 6 years. Father seeks to change custody. Judge spend an hour with children
in chambers. They wished to stay where they were. Judge pointed out children seemed
well adjusted and desirous of remaining in present custodial arrangement with third
parties, but wanted visitation with their father as well. Court concluded stability would be
provided for by leaving children where they were. In addition, court found that it could
engage in a comparison between the custodial home and the proposed alternative, since
the law prior to the Child Custody Act as reflected in In re Ernst, 373 Mich. 337 (1964)
and Rincon v Rincon, 29 Mich. App. 150 (1970) had been changed by the Child Custody
Act.
10. Craig Ross has added this useful insight: "Richard Gardner points out that change is
stressful for all humans, and most stressful for children. Thus, he suggests, changes for
children in a divorce be kept to a minimum. This would include school, presence of
siblings, neighborhoods, etc. This is tempered, of course, by the child's age and his/her
desires. Again, there is a seamlessness and overlap that is difficult to evaluate by a
checklist. Your notion "who can provide continuity" (or who wants and appreciates this
for the child) is probably good enough."
11. Mazurkiewicz v Mazurkiewicz, 164 Mich. App. 492 (1987), this factor is to be weighted
in father's favor where mother had an "inclination" towards "inappropriate relations with
other persons during her marriage." (This case may be important to remember where
there is adultery involved; if the court is precluded from considering the relationships
under the morality factor, Mazurkiewicz says it may be relevant under the permanence
factor.) Caution: since this note was originally written, the Supreme Court has gone to
some length to explicate how trial courts should apply the morality factor. [See Fletcher v
Fletcher, 447 Mich 871 (1994).] In Fletcher, the court recited extramarital conduct of
which the children were unaware, and also supported the Court of Appeals treatment of
permanence: "In this case, there was no danger of the family unit splitting up, regardless
of which party was awarded custody. Because the evidence favors neither party, we find
the parties to be equally positioned to provide permanence as single parent family units."
The court specifically rejects "acceptability" of the proposed homes as being relevant
because it is addressed under b and c. Fletcher v Fletcher, 200 Mich App 505 (1993) at p
518.
12. Feldman v Feldman, 55 Mich. App. 147 (1974), custody granted to wife who had
engaged in two "adulterous affairs" but who was a "good mother and was in charge of
sons' religious education." Moral fitness is only one factor and on balance it is in best


 10

 interests of children for her to have custody. (In this case husband drank toilet bowl
cleaner in an effort to commit suicide.) Mother's act of unfaithfulness or of adultery does
not necessarily preclude her from being awarded custody of her children. Bednarski v
Bednarski, 141 Mich. App. 15 (1985). Gulyas v Gulyas, 75 Mich. App. 138 (1977): Hon.
Dorothy Riley in her dissent states, parenthetically, that this factor should not be used by
a trial judge to impose work ethic notions. Fletcher v Fletcher, 200 Mich. App. 505
(1993) states that the court may not use marital affairs of which the child has no
knowledge against such parent with respect to morality. The trial judge used morality test
wrongfully and in addition let it influence the court in balancing the other factors as well.
On appeal, (Fletcher v Fletcher, 447 Mich 871 (1994), the Supreme Court did not disturb
this ruling, but added the following: "[moral fitness], like all the other statutory factors,
relates to a person's fitness as a parent. To evaluate parental fitness, courts must look to
the parent child relationship and the effect that the conduct at issue will have on that
relationship. Thus, the question under factor f is not "who is the morally superior adult";
the question concerns the parties' relatives fitness to provide for their child, given the
moral disposition of each party as demonstrated by individual conduct. We hold that in
making that finding, questionable conduct is relevant to factor f only if is a type of
conduct that necessarily has a significant influence on how one will function as a
parent." In making that determination, the court refers to this article as it originally
appeared in 21 Mich Fam LJ 15 (Oct, 1994) in footnote 6. The Supreme Court states this
article "provides a list of conduct that, although not exhaustive, represents the type of
morally questionable conduct, relevant to one's moral fitness as a parent. It includes:
verbal abuse, drinking problems, driving record, physical or sexual abuse of children, and
other illegal or offensive behaviors. While the list also includes consideration of 'extra-
martial conduct known by the children,' we believe that today's decision sufficiently
addresses the relevance of that fact." Bowers v Bowers, 198 Mich. App. 320 (1993)
shows that a variety of subjects can be used under this category, specifically, the court
may consider a drinking problem, arrest record, living with child's baby sitter, allowing
son to drink from his beer, verbal abuse, and lying about past alcohol record. Helms v
Helms, 185 Mich. App. 680 (1990), allows consideration of a circumstance where
plaintiff is pregnant, unmarried, and living with her boyfriend, since the case is not one of
unmarried cohabitation "standing alone"; plaintiff's pregnancy is an aggravating factor.
Since moral fitness was not the sole basis for the decision, it was proper to make a
custody award taking this factor into account as one of the relevant factors. Snyder v
Snyder, 170 Mich. App. 801 (1988), states that in a case where the court is considering
morality as an issue in determining visitation rights, it is error for the judge to cancel
visitation with father when he moves in with a woman to whom he is not married.
Lifestyle cannot be sole factor by which morality is judged. Truitt v Truitt, 172 Mich.
App. 38 (1988) explains that cohabitation with girlfriend does not of itself mean the party
is immoral. A now out of print publication by the State Court Administrative Office has
this to say: "Is there a pattern of behavior in the realm of morals and ethics on the part of
either party that might have an adverse effect on the moral or ethical development of the
children? This question may be answered in regard to two basic issues: example and
psychological impact. In the first, repeated illegal or immoral behavior conducted by the
parent in the presence of the child, or behavior of which the child is likely to learn, can
serve as a negative example to the child and may encourage such behavior on the child's


 11

 part. In the second instance, behavior on the part of the parent such as use of drugs or
repeated liaisons with multiple partners could cause neglect of the child's basic needs or
disruption in the child's ability to bond with significant adult figures...it is only the task of
the investigator to note any differences between the behavior of the parents which
impacts on the moral or ethical development of the child."
13. Feldman v. Feldman, 55 Mich. App. 147 (1974), where husband drank toilet bowl cleaner
in an effort to commit suicide, court properly gave wife credit under this factor. Deafness,
while a physical disability, should not be used against a person in a custody case where to
do so would defeat public policy favoring integration of the handicapped into
responsibilities and satisfactions of family life. Bednarski v. Bednarski, 141 Mich. App.
15 (1985). Harper v. Harper, 199 Mich. App. 409 (1993) states that where mental health
interferes significantly with the ability of a party to safeguard the children's health and
well being, it will weigh in favor of the other party.
14. In cases where the courts have found the children too young to express a preference, the
court may also determine that the children are too young to have established a home,
community, and school record. Therefore, in very young children, this may turn out not
to be a relevant factor.
15. Gulyas v Gulyas, 75 Mich. App. 138 (1977), where judge held in camera discussion with
children, no record made, parties stipulated to the private conversation out of their
presence, and judge did not disclose contents of discussion, affirmed on appeal. Hon.
Dorothy Riley in a strong dissent states that the failure of the trial court to provide
substantive account of an in camera interview effectively frustrates meaningful appellate
review and is therefore a clear error on a major issue. Bowers v Bowers, 198 Mich. App.
320 (1993) demonstrates importance of sealed transcript being made of an in camera
interview with child. Bowers v Bowers, 190 Mich. App. 51 (1991) states that children
ages 6 and 9 are not too young to express their preferences as a matter of law. In Wilkins
v Wilkins, 149 Mich. App. 779 (1986) the trial court said since the children were 10
years of age and younger, they were not of sufficient age to express a preference. (This
point is apparently not important to the court where factors were all considered and no
prejudice results.) In Curless v Curless, 137 Mich. App. 673 (1984) court did not consider
children's preferences saying they were too young. In affirming the trial court, the Court
of Appeals explains this is discretionary with the trial court. DeGrow v DeGrow, 112
Mich. App. 260 (1982), emphasizes that child's preference does not outweigh all other
factors, but is just one factor to take into account. Siwik v Siwik, 89 Mich. App. 603
(1979) shows that the trial court will not be reversed where it interviews a 6-year-old
child and determines based upon the interview that the child is not of sufficient age to
express a preference. This is left to the sound discretion of the court. Stevens v Stevens,
86 Mich. App. 258 (1978) states that failure of a trial court to speak with child in custody
dispute generally requires remand. Burghdoff v Burghdoff, 66 Mich. App. 608 (1976)
states that an in camera conference is generally the best way for the judge to determine
the preference of the child. The conference should be restricted in scope. The child
should not be involved in assisting the court determine the moral fitness of the parties.
The test in determining whether the child is of sufficient age is not the test for a witness
in a courtroom, e.g., "child has the intelligence and sense of obligation to tell the truth"
and the trial court does not have to make such a finding. The child should not be expected


 12

 to testify in open court. In Roudabush v Roudabush, 62 Mich. App. 391 (1975), the court
declined to interview the child. The case was remanded for further proceedings. The
appellate court states that the statutes permits but does not require trial court to consider
the preference of a child involved in a custody dispute, but where there is a significant
environmental difference between the parties, the court should speak informally with the
child, preferably in chambers. While many trial judges empathize with the need for the
appellate courts to know what occurs in chambers during interviews with minor children,
they are also mindful of the effects on children of bringing into chambers the trappings of
the courtroom -- a reporter and recording equipment, for example.
16. Shortly after this factor was added to the Child Custody Act, a trial court failed to
consider it, because it did not know of the amendment. Remand was necessary. Failure
to consider this, or presumably any factor under the Child Custody Act, is grounds for
remand. Blaskowski v Blaskowski, 115 Mich. App. 1 (1982). (The trial court also failed
to find whether an established custodial environment existed in order to determine the
standard of proof.)
17. There are no published cases.
18. Freeman v Freeman, 163 Mich. App. 493 (1987). Court may not determine a biological
preference exists without reference to its relevance or whether it is substantiated by
evidence. Here court awarded a daughter to her mother and articulated that a natural
biological preference dictated the result. Wilcox v Wilcox, 100 Mich. App. 75 (1980)
dealt with joint custody. The Court ordered two children 9 and 12 to live with each parent
every other week. While joint legal custody (ability of parents to make decisions that
significantly affect the life of the child, such as education and health care) was
appropriate, joint physical custody (decisions about immediate supervisory control) was
not appropriate because the parties were mutually unable to agree to such an
arrangement. The court points out that a mere objection by one parent does not preclude
joint custody award. (The appellate court may also have been reacting here to what was
an obviously awkward solution to a custody problem.) In re Weldon, 397 Mich. 225
(1976), deals with third party custody. In a convoluted termination of rights and adoption
case, the Supreme Court points out that third parties may be awarded custody over a
parent, even though the parent is not unfit and had not neglected or abandoned the child.
Presumption that parental custody is in the best interests of the child may be rebutted by
evidence of the best interest of the child which does not relate to parental fitness.
Modification of prior orders. Bowie v Arder, 411 Mich 23 (1992) overrules In re Weldon:
"...the decision in Weldon is in conflict with our holding in Ruppel [ Ruppel v Lesner,
421 Mich 559 (1984)] that the Child Custody Act does not create substantive rights of
entitlement to legal custody of a child. Further, the decision in Weldon is also called into
question by the legislature's subsequent amendment of the act explicitly giving guardians,
and not other third parties, standing to petition for custody. Because the Weldon decision,
giving standing under the act to a third party who does not have a legal right of
entitlement to the custody of a child, is inconsistent with Ruppel and our decision here, it
is overruled." The court later stated: "Therefore, we affirm our holding in Ruppel that a
third party cannot create a custody dispute by simply filing a complaint in Circuit Court
alleging that giving legal custody to the third party is in the best interests of the child. A
third party does not have standing to create a custody dispute not incidental to divorce or


 13

 separate maintenance proceedings unless the third party is a guardian of the child or has a
substantive right of entitlement to custody of the child. The legislature has not created a
substantive right to custody of a child on the basis of the child's residence with someone
other than a parent, and this Court is not in a postiion to do so." McMillan v McMillan,
97 Mich. App. 600 (1980) provides that clear and convincing evidence is the standard
when one seeks to modify a previous child custody order. Of what relevance is this case
to a situation where a parent seeks to terminate a limited guardianship where the terms of
the placement plan have been fulfilled; where the terms have not been fulfilled; where a
parent seeks to terminate a full guardianship where there is no placement plan but there is
evidence that the purpose of the guardianship as understood by the parties has been
accomplished; where there is not such evidence and an established custodial environment
can be shown? Moser v Moser, 130 Mich. App. 97 (1983) states that even if mom and
dad had an agreement that she would receive custody upon establishing herself
financially, once she obtained that status, she would still have to prove by clear and
convincing evidence that it was in the best interests of the children to change their
established custody under the order. (The wife in this case characterized this as "custody
by trick".) There are other cases cited in the case going the other way on this "conditional
custody" theory. This case may have particular relevance to a guardianship where mom
agrees to get the children back after prison, successfully completing drug rehabilitation,
and so on. Mazurkiewicz v Mazurkiewicz, 164 Mich. App. 492 (1987) defines an
established custodial environment as one where time is an important factor. It should be
of significant duration during which the child is given parental care, discipline, love,
guidance that are age and needs appropriate and where the relationship is marked by
qualities of security, stability, and permanence. One should look to the situation in the
years immediately preceding the action. Schwiesow v Schwiesow, 159 Mich. App. 548
(1987); Breas v Breas, 149 Mich. App. 103 (1986) where it was held that no custodial
environment had been established where mom had physical custody, there was a pending
divorce, dad was seeking custody and where the environment provided the child was not
permanent. Also see Curless v Curless, 137 Mich. App. 673 (1984) with the same result.
Curless makes the observation that in cases where the custodian discourages the children
from seeing the non-custodial party and fails to cooperate with visitation, this works
against making a finding that there is an established custodial environment. In
Mazurkiewicz, it may also have helped that the Friend of the Court had made the
determination that there was no custodial environment. See Blaskowski v Blaskowski,
115 Mich. App. 1 (1982), where the court states that it makes no difference how the
established custodial environment arises, through a temporary or a permanent order, but
whether it exits t that is important. Baker v Baker, 411 Mich. 567 (1981) states that mere
temporary order does not create an established custodial environment. One must look at
all the circumstances. In the Baker case, the court determined that the child's contacts
with the community developed when the family was together and are not sufficient to
make an established custodial environment for purposes of the custody dispute at this
time. Bowers v Bowers, 190 Mich. App. 51 (1991) makes it clear that an established
custodial environment may be in place as a consequence of a temporary court order. It is
the existence of the environment and not how it came into being that is important.
Further, once established, a custodial environment may not be changed absent clear and
convincing evidence. In Carson v Carson, 156 Mich. App. 291 (1986), the Court of


 14

 Appeals explains that the "Clear and convincing evidence is not merely an evidentiary
rule which would allow a change of custody based upon clear and convincing evidence
that a marginal improvement in the child's life would occur." Overall v Overall, 203
Mich. App. 450 (1994) provides that parties may stipulate that there is no established
custodial environment where there is a shared custodial arrangement. In Gulyas v Gulyas,
75 Mich. App. 138 (1977), Hon. Dorothy Riley states in her dissent, parenthetically, that
best interests factors ought not to be used by trial judge to express outmoded notions of
importance of mom being near the hearth and home. Bowers v Bowers, 198 Mich. App.
320 (1993) states that expectation of permanence is a factor in determining if custodial
environment has been established. It further states that if over an appreciable period of
time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort, that should be considered. The
court further points out that the age of the child, physical environment, and the inclination
of the custodian and the child regarding the permanency of the relationship must be
considered. Custody orders alone do not establish a custodial environment. Also, where a
parent voluntarily and temporarily released children to father, it does not change the
established custodial environment. Theroux v Doerr, 137 Mich. App. 147 (1984). A court
should not change custody based upon violation of court orders. Adams v Adams, 100
Mich. App. 1 (1980). Interracial factors in determining custody are irrelevant. Edel v
Edel, 97 Mich. App. 266 (1980). Napora v Napora, 159 Mich. App. 241 (1986) showed
that parties' stipulation regarding custody was not binding upon the trial court that was
required to make a determination in the best interests of the minor child irrespective of
the agreement. Truitt v Truitt, 172 Mich. App. 38 (1988) explains the use of the Friend of
the Court report in child custody disputes. It is error to admit the report where objected to
and a hearing is requested; court may consider it, but it may not be introduced in
evidence unless stipulated to. In a request for a change of domicile, best interests factors
are appropriate to consider and the standard of proof is a preponderance of the evidence.
Watters v Watters, 112 Mich. App. 1 (1981). The Court has discretion to use child
psychologist in determining a child custody matter and the weight to be given the
testimony is subject to the court's discretion. Siwik v Siwik, 89 Mich. App. 603 (1979).
Glover v McRipley, 159 Mich. App. 130 (1987) instructs trial courts how to proceed
when there is a collision of presumptions: that is, there is a presumption in favor of a
natural parent and there is a presumption in favor of not changing an established custodial
environment. In this case, the burden of persuasion is with the parent challenging the
established custodial environment with the third party custodian. Proof is by a
preponderance of the evidence.

Family Division: Consent Judgment of Divorce

Requirements for Consent Judgment of Divorce

Time Requirements


 15

DO Judgment may not be entered until 60 days or more after filing of complaint.
DM Judgment may not be entered until 6 months after filing of complaint.
The Court may accelerate the entry of a judgment after 60 days has passed if the criteria in MCR
3.210(A)(2) are met.
Praecipe must be filed with Central Assignment 7 days prior to the pro con hearing.

Signatures
Original Judgment shall contain original signatures of both parties and Counsel, if any.

Approvals
Friend of the Court:
• Must approve all DM Judgments.
• Must approve DO judgment only if alimony is ordered.
• Will assign (stamp) judgment fee paid at Court Services.
Prosecuting Attorney:
• Must approve all DM Judgments, or any Judgment with an issue or potential issue of
paternity, e.g. where the wife is now pregnant or where a claim is made that a child is not
the result of the marriage.
• Must complete checklist form available at Prosecutor’s office.

Fees
Paid at Clerk’s Office--Court Services.
Fee Schedule:
• DM with no Friend of the Court recommendation or mediation - $30.00.
• DM with Friend of the Court mediation - $50.00.
• DM with Friend of the Court recommendation - $70.00.
• DO - no fees.

Miscellaneous
Record of Divorce or Annulment in red ink.
Attachments, such as settlement agreement, QDRO, QMCSO, signed in original.
DM - extra copy of Judgment and above attachments for Friend of the Court.


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 Family Division: Discovery Policy

Introduction
Discovery in domestic relations cases is designed to give parties necessary financial information
to fairly divide their property. There are some cases where discovery may have a broader
purpose. Discovery is not to be used for purposes of harassment, delay, or gaining an unfair
economic advantage. Parties shall as a matter of course complete and exchange the fully
completed Verified Personal Financial Statement. In most cases, this will provide sufficient
information so additional discovery will not be required. Long pattern interrogatories are seldom
necessary.

Principles
The following principles are set forth in the Michigan Court Rules or are established by the
Judges of the Family Division:
• Discovery in domestic relations cases is governed by MCR 2.300 [ MCR 3.201 (C)].
• At pre-trial conference the court shall establish times for the completion of discovery, the
exchange of witness lists, scheduling of alternative dispute resolution, settlement
conference and trial. MCR 2.301(A), MCR 2.401(B)(C) .

Family Division: Emergencies

Definition:
A sudden, urgent, usually unexpected occurrence requiring immediate action. The request for
emergency relief will usually be in the form of a motion for:
• Temporary Restraining Order (TRO)
• Preliminary Injunctive Order (PIO)
• Order to Show Cause (OSC)Parties should frame their requests to comply with relevant
court rules, principally MCR 3.310 (Injunctions) and MCR 3.606 (Contempts Outside
Immediate Presence of Court).

Issues addressed at hearing:

• Was the opposing party properly served?
• Is a minor child or party at risk of irreparable harm? What is the harm? In what way is it


 17

 irreparable? What is the least intrusive judicial action which can reduce the harm or
begin repair of damage? What actions can be taken by the parties to reduce or end the
emergency? What other resources are available to protect the child or party?
• If there is an ongoing violation of an existing court order concerning personal safety,
prompt, efficient fact-finding should be scheduled.
In emergencies as to property, priorities are:
• Is there an ongoing violation of an existing court order concerning property?
• Is there a basis for TRO or PIO?

Possible action by Judge:

• Refer to ADR.
• Refer to the Friend of the Court for concurrence that an emergency circumstance exists
requiring immediate judicial intervention.
• Grant relief (for example A, B, or C of the first section above).
• Order sanctions, if the motion is deemed frivolous.

Family Division: Mediation

No FOC evaluation
The FOC will not schedule a party for an appointment with an Evaluator until after that party has
attended mediation orientation.

Judge’s Inquiry
It is appropriate for the Judge to inquire whether either or both parties attended the mandatory
mediation orientation under the following circumstances:
• When faced with a request for ex parte relief.
• When faced with a request for interim relief.
• At any scheduling or settlement conference.
• At any motion.
Attendance at the mandatory meeting or failure to attend should not be factors considered at trial.
Comment: The reason for making such an inquiry is to assist the judge in making decisions about
the interim arrangements which are needed while the case is prepared for resolution, either by
trial and decree, or some form of settlement. Because participation in mediation itself is a
voluntary process, history of mediation or non mediation should not be relevant evidence at trial.


 18

Interim Relief
The Judge should not grant interim relief to a moving party who has not attended a mandatory
meeting, unless one of the following is true:
• The best interests of a minor child clearly require the court to act;
• An emergency exists for reasons independent of the actions of the moving party, and
emergency relief is appropriate.
The party was not required to attend the mandatory meeting.

Minor Children - Change of Domicile

Procedural
An order or judgment concerning custody of a minor child must contain a provision that the child
shall not be removed from the State of Michigan without the approval of the judge who awarded
custody or the judge’s successor. MCR 3.211(C).
An order to permit a removal from the State of Michigan is required before a move can occur.
The order may be entered either by consent or by the court after hearing.
Parties who are in pro per who agree to a removal from the state may obtain a form consent order
from the Friend of the Court office.

Case Law
Dick v Dick, 147 Mich App 513, (1985) summarizes the standards for deciding removal
petitions, employing the test from the New Jersey case of D'Onofrio v D'Onofrio.
Under D'Onofrio v D'Onofrio, 144 NJ Super 200, 206-207, 365 A2d 27 (1976), aff'd, 144 NJ
Super 352, 365 A2d 716 (1976) the trial court must consider:
• Prospective advantages of the move for improvement of general quality of life for
custodial parent and child(ren).
• Integrity of the motives of the custodial parent in seeking to remove in order to
determine whether the move is inspired primarily by a desire to frustrate the
parental relationship of the non-custodial parent.
• Is the custodial parent likely to comply with this state's parenting provisions once
s/he is no longer in the state?
• Integrity of the non-custodial parent in opposing the move. For example, consider
extent to which opposition is motivated by desire to achieve financial advantage.
• Will there be a realistic opportunity for parenting time in lieu of the weekly
pattern which can foster an adequate basis for preserving and fostering the
parental relationship between the non-custodial parent and child(ren) if removal is
allowed?
•


 19

References
American Academy of Matrimonial Lawyers (1 997). "Proposed Model Relocation Act."
Ass'n of Family and Conciliation Courts (1996). Family and Conciliation Courts Review, 34,4.
The entire issue of this journal is devoted to move away issues and contains the opinions In Re
Marriage of Burgess,13 Cal 4th 25, 913 P 2d 473 (1996) (the lead case for freer "move away"
criteria for primary custodians), and Tropea v. Tropea, 665 NE 2d 145 (N.Y. 1996), as well as a
relevant Canadian opinion.
Bruch, C.S. & Bowermaster, J.M. (1996). The relocation of children and custodial parents:
public policy, past and present. Family Law Quarterly, 30, 2.
Wallerstein, J.S. & Tanke, T.J. (1996). To move or not to move: Psycholegal considerations in
the relocation of children following divorce. Family Law Quarterly, 30, 2. (Note: Author
suggests that when a child is in the primary residential custody of one parent, that parent should
be able to relocate except in unusual circumstances. However, when there is a true joint physical
custody situation, the parent seeking to move should bear the burden of showing that the move is
in the child's best interests.)
Weissman, H.N. (1994) Psychotherapeutic and psycholegal considerations: when a custodial
parent seeks to move away. The American Journal of Family Therapy, 22, 2.
LaFrance, A.B. (1995-1996). Child custody and relocation: a constitutional perspective. Univ. of
Louisville Journal of Family Law, 34, 1.

Minor Children - Consent Order Appointing Parenting Facilitator

This order has been prepared by a committee of the family bar to be used to guide counsel when
considering the use of a parenting facilitator.
Consent Order Appointing Parenting Facilitator--(PDF)

Minor Children - Custody

I. Principles
It is presumed that conflict and change are disruptive and harmful to children and that the court
should always try to minimize the number of changes and reduce conflict whenever possible.
The higher the level of conflict the fewer contacts there should be between the parties.
The higher the level of conflict, the more expedited the case should be.
An imperfect decision which reduces conflict is less harmful to children than maintaining
a conflicted status quo, or a "fair" result to parents which escalates conflict.
If a temporary order changes the status quo, procedures should be expedited.
Do not order "birds nest" arrangements unless agreed to by the parties.


 20

II. Practice
Ex parte orders for temporary possession of minor children:
Must include affidavit stating that the order would preserve status quo. Court should check to be
sure that affidavit alleges status quo.
Must be presented to Friend of the Court for approval before submitting to the Court.
If it later appears that order was in fact changing the status quo there should be sanctions against
the party who misrepresented the facts.
Hearings on motions for temporary possession:
Whenever possible, a pre-hearing conference should be held with the Judicial Assistant
or Friend of the Court Referee. It should be at the discretion of the Judicial Assistant or
Referee whether the meeting includes the parties.
The case should be referred to a Friend of the Court Evaluator with the status quo
maintained unless:
There is a medium high or high level of conflict. In that case the children should
remain in the possession of the historically more primary parent (in the marital
home if that is desired by the parent and economically possible); or
If the children are at risk for abuse or neglect by the historically more primary
parent, then the children should be placed with the other parent. Visitation with
the risky parent should be as often as possible, taking into account the safety
needs of the children and the need to reduce the level of conflict. The case should
be referred for the earliest possible FOC date or a psychological evaluation. (SEE
IIC below.)
See Benchbook on Removal of Spouse from Marital Home.
If the hearing is held after the preliminary/final FOC recommendation has been made, the
Court should follow the recommendation unless it appears to be off the mark or there is
new material or evidence which was not available to the Friend of the Court.
Ordering psychological evaluation:
Factors to consider:
• If requested by FOC.
• If family shows high conflict/severe dysfunction. See Mary Whiteside’s scale
for conflict, below. For example, history of emotional, physical, child or
substance abuse, child neglect, children showing serious acting out, and other
problems.
• If highly problematic case which looks like it will take significant trial time.
• If mental health of a party is at issue.
• If requested by both parties.
• The cost and ability of each party to pay.


 21

 Picking an Evaluator:
• By consent of attorneys and parties.
• Each attorney submits list of two or three, and Court picks one.
De bene esse deposition should be done by the party who will call the expert if the expert is not
otherwise available at trial.
The trial or evidentiary hearing should be scheduled after Friend of the Court Evaluation,
Referee Hearing or psychological evaluation.
The trial court must read and may consider any FOC recommendation in reaching a decision,
though the report itself is generally inadmissible as evidence unless all parties stipulate to its
admission. Hoffman v Hoffman, 119 Mich App 79 (1982); McCarthy v McCarthy, 74 Mich App
105 (1977).
Psychological evaluation can be considered in support of the Court’s ultimate finding, but not as
a substitute for these findings.
Truly new material or evidence can be used to rebut a FOC recommendation or psychological
evaluation.


 22

Best Interests of Child check list.

III. Continuum of Post-Divorce Parenting Environments

◄— Increased stability and maturity ◄—

EFFECTIVE TOXIC
—► Escalation of conflict —►

COOPERATIVE MIDRANGE PARALLEL CONFLICTED

Mutual support Do your own thing Active sabotage

Teamwork Avoid contact when possible Escalation of attack and defense

Clear boundaries Businesslike with formal rules Blurring of boundary between

governing discussions parent/spouse roles

Flexible
Minimize changes Changes escalate conflict

High information exchange

Exchange only important Withhold information
information
Constructive problem solving
Lose sight of real issues
Agree to disagree
Mature
Severely wounded, narcissistic
Occasional flare-ups
Knowledgeable
Insensitive to developmental
Information more limited and issues
Involved stereotyped

Uninvolved or merged with

Experienced Interested and involved, but child
inexperienced
Authoritative parenting Absence of appropriate models
Authoritarian or inconsistently Neglectful, chaotic, and/
available


 23

Interventions
• Education, support of positive parenting.
• Presumptive mediation for disputes, education, facilitated parenting meetings,
psychotherapy.
• Med-arb, evaluation, arbitration, group interventions, therapy, supportive legal orders and
motions.

Mary F. Whiteside, Ph.D.

Ann Arbor Center for the Family
2300 Washtenaw Ave. Ste.203
Ann Arbor, MI 48104

Family Division: Motion Practice

The following general Motion Practice is offered as a guideline for those filing motions with the
Washtenaw County Trial Court. For specific requirements, see the individual judge's
motion policy.

Service
Court Rule MCR 2.119(C) and local practice require:
Filing of motion at least 7 days prior to hearing. Original and "Judge’s Copy" filed with
court services.
MCR 2.119(A) requires the filing of a brief if point of law is being argued. A clearly
marked "Judge’s Copy" of the motion and brief should be filed with Judge’s office.
Copies of the motion (and brief if applicable) marked "FOC" must also be submitted at
the time of filing in all DM cases and DO cases with support issues.
Filing of praecipe with central assignment to schedule hearing.
Service on opposing counsel must be made 9 days prior to hearing if by mail, or 7 days
prior if by personal service.
Response to motion must be served 5 days prior to hearing if by mail, or 3 days prior if
by personal service.

Motion
The motion should contain all the facts relied upon and specifically the following:
AT THE BEGINNING OF THE MOTION state the specific relief requested.


 24

 If relevant state:
• Whether the case is pre or post judgment.
• Whether the parties are separated or residing together.
• The ages of the children.
• The current parenting schedule.
• Employment status and current annual gross income of each party.
Attach any documents relied upon in the motion.

Response
The response should contain all the facts relied upon and specifically the following:
AT THE BEGINNING OF THE ANSWER state the specific relief requested, including
any areas of agreement.
Respond to the allegations.
If there is a disagreement, or the motion omits any of the following, state:
• Whether the case is pre or post judgment.
• Whether the parties are separated or residing together.
• The ages of the children.
• The current parenting schedule.
• Employment status and current annual gross income of each party.
Attach any necessary documents.

Attorney Fees
Fees will be ordered for frivolous motions or unreasonable behavior, failure to follow orders, or
failure to comply with discovery, among other reasons. Preparation and argument for a motion
takes at least three hours. The average fee in this area is $175 per hour. A common attorney fee
award would be $500.

Judges’ Expectations
The Judges expect the following to happen:
The attorneys will talk to each other (or an unrepresented party) to narrow the issues
before arguing to the judge.
Client should be personally present or available by phone.
Consents take priority over contested matters on the docket.
If counsel leave the courtroom to discuss the case, and the case is called while they are
out, when they return to the court room they should tell the clerk they are ready. The case
will be called as soon as reasonably possible.


 25

 Attorneys must be prepared (with calendars and client calendar) to set future dates.

Argument
Counsel should deliver all documents (including exhibits and proposed orders) to the court
officer when checking in. The judge will consider it a waste of time to "approach the bench" on
routine matters.
The Court may dispense with argument pursuant to Court Rule.
If argument is permitted, the court may limit time for argument.
Counsel should assume motion briefs have been read and not re-argue matters set forth in the
brief.
Arguments should begin with a short statement of the problem, a suggested solution and a reason
the suggested solution is the preferable one.
Counsel should remind clients of this procedure so they will not be disappointed when counsel
does not engage in extensive and eloquent oratory.
If no order is entered by the Court at hearing, the attorneys should talk to each other about the
Judge’s ruling. If they disagree, they should report back to the Court for clarification before they
leave the building.

Family Division: Order Entry

Introduction
The Michigan Court Rules govern local practice of order entry. This outline is not a substitute
for the Court Rules, but rather, highlights and supplements certain aspects of the MCR, in
particular, where the local practice procedures go beyond the requirements of the Court Rule.

General Orders and 7-Day Orders, MCR 2.602

All orders should be approved by counsel and parties, or counsel on behalf of parties, MCR
2.117 (B)(1).
7-Day Orders must be submitted to the Court within seven (7) days after the decision, MCR
2.602 (B)(3).
The presenting attorney must file the original and proof of service with Court Clerk.
If objections are filed, the attorney presenting the 7-Day Order must file a motion for entry of
order within seven (7) days of receiving the objection.
Once 7 Day Order is entered, the presenting attorney must send a true copy to opposing counsel
within seven (7) days of entry and file a Proof of Service with the Court Clerk.
Court Services has a check list for entry of orders under the 7 day rule.


 26

Ex Parte Orders, MCR 3.207
(also see Section on Emergency Orders)
In general, an ex parte order requires an affidavit or verified pleading with facts showing
irreparable harm, loss, or damage will result from the delay required to give notice or that notice
will precipitate adverse action.
An extra copy of the order should be submitted to the Court for the Friend of the Court in DM
cases.
True copies must be sent to the FOC and other party. Ex-parte orders are effective upon entry but
enforceable only upon service.
All ex-parte orders for child support, custody or visitation must have specific language of MCR
3.207 (B)(5).
All ex-parte orders must state that the order will become a temporary order automatically if the
other party does not file written objections or file a motion to modify or rescind the ex parte
order together with a request for a hearing within 14 days after the order is served.
Written objections or motion to rescind and a request for hearing must be filed within 14 days
after order is served. A hearing must occur within 21 days after objection or motion is filed (35
days maximum total time).
The FOC must approve all orders in DM cases.

Temporary Orders
Temporary orders require a hearing and a verified motion or petition unless there is consent or
they are entered ex-parte.
All temporary orders should state whether provisions of the order may be modified retroactively
by subsequent order.
The FOC must approve all orders in DM cases.

How to determine if an Order has been signed

A signed order list for each judge is posted on this website daily.
Attorneys and unrepresented parties may call the judicial coordinator in the judge’s office.

FOC recommendations/Referee and caseworker and order entry

Old rule allowed order to be entered ex-parte after 21 days if no objections were filed.
New rule requires a hearing for entry of order whether or not objections are filed, unless entered
by consent.


 27

 Family Division: PPO’s

The outline below addresses the question of when a Personal Protection Order (PPO) is
proper.

Filing for PPO

File Petition on court approved form, with required information completed. Use Form CC 375
for domestic relationships and Form CC 377 for non-domestic relationships (stalking).
Relationship of parties:
• Spouse.
• Former Spouse.
• Housemate or former housemate.
• Parties have a child in common.
• Are dating or have dated.
If none of these relationships apply, relief is limited to stopping stalking ( Form CC 377).
Behavior Petitioner wants terminated:
• Assaulting, attacking, beating, wounding harassing petitioner or children.
• Stalking petitioner.
• Communicating with petitioner.
• Attempting to commit or threaten to commit acts of violence against petitioner or
children.
• Interfering with petitioner's job.
• Removing petitioner's minor children from petitioner's possession.
• Interfering with petitioner's right to remove certain property.

Ex-Parte Order
Must be reviewed by the Personal Protection Liaison at FOC Office.
Order can be issued ex-parte if there is sufficient information in the petition to show that (1)
respondent has been violent or threatening and (2) the Order is necessary to protect the Petitioner
from further violence or threats and (3) immediate and irreparable injury, loss or damage will
result from the delay required to effect notice or notice itself will precipitate adverse action
before a Personal Protection Order can be issued.
If the Court denies a petition, the reason(s) for denial must be clearly stated on the order.

Hearing
If the ex-parte order is denied, the Petitioner can file the Petition and get a hearing.


 28

Motion requirements must be followed.
Petitioner testifies in response to attorney's or judge's questions about incidents alleged in
petition. (If Petitioner alleges extreme fear of Respondent, she/he may testify by phone and avoid
being at hearing with Respondent.)
Respondent testifies in response to attorney's or judge's questions regarding answers to
allegations.
If Judge determines that allegations in petition are true and meet the legal standards, the Petition
should be granted.
Court needs to determine whether restrictions make sense. Need to adhere to options in
preprinted order. (Limitations of LIEN)
Court needs to determine length of time the order is in effect (at least 182 days but not more than
one year).
The Judge will deny the Petition if the allegations are not proven by a preponderance of
evidence, or do not meet the legal standard. The order must reflect the reasons for denial.

For Objection Hearings after the Ex-Parte Order has been granted
Judge should determine whether objections were filed within 14 days of being served. If beyond
14 days, objecting party must allege good cause for the delay.
Was Petitioner served with objections and notice of hearing?
Does the evidence presented by the Respondent refute the allegations contained in the petition?

Extension or Modification of PPO

If a PPO is granted, the Petitioner may file for extension or modification.

Violation Hearings
Petitions for an Order to Show Cause should be filed and scheduled for hearing on Motion day.
Motion requirements must be met, including service on Respondent.
Argument and brief testimony taken.
If Judge determines that Respondent violated order, may impose sanctions such as:
• Jail time.
• Fine.
• More restrictive order.
• Attorney fees to Petitioner.
Costs to compensate Petitioner for domestic violence.


 29

 Family Division: Property Division

Introduction
Property division in Michigan is governed by equitable considerations. Johnson v Johnson, 346
Mich 418 (1956). The specific facts and circumstances of each individual case are highly
relevant. When dividing marital property, neither party is presumptively entitled to a greater
share of the marital assets, nor responsible for a greater share of the marital debts.

I. General presumptions in division of property and debts

All property and debts are marital.
Neither party is inherently entitled to a greater share of the marital assets or responsible
for a greater share of the marital debts.
These presumptions may be rebutted, but the burden of proof is on the party seeking to
exclude asset as separate or seeking an unequal division of the marital estate.

II. Separate property

If a party makes a separate property claim, the court is required to make a finding
whether the property is separate or marital.
A finding of separate property is not dispositive, see III below.
The burden of proof is on the party making the separate property claim.
Examples of separate property claims:
• Premarital assets, but see second bulletted item below.
• Premarital accumulations of retirement benefits.
• Gifts/inheritances from third parties.
• Pain and suffering award.
• Example of separate debt - student loans.
In a short term childless marriage, the Court of Appeals has recently held that
appreciation on premarital assets which occurs before marriage is separate property, but
appreciation after marriage may be included in the marital estate unless the appreciation
is wholly passive. Reeves v Reeves, 226 Mich App 490; 575 NW2d 1 (1997).
Property acquired after the parties publicly manifest their intent to lead separate lives is
marital property, but the contribution of each party to the acquisition of such property
will take on particular significance. Byington v Byington, 224 Mich App 103 (1997)
A party’s separate property can be opened for redistribution when one of two statutorily
created exceptions is met. Reeves, supra.
Insufficiency of marital estate to meet needs of the other party. MCL 552.23; MSA
25.103.


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 Contribution to the acquisition, improvement or accumulation of the property by the
other party. MCL 552.401; MSA 25.136. See Hanaway v Hanaway, 208 Mich App 278
(1995) regarding the care of children and the household as a contribution.

III. Circumstances when marital property and debts may be divided unequally
This occurs in relatively rare circumstances. Some examples:
• Prenuptial agreement - see IV, below.
• Short-term childless marriage.
Definition of "short-term" is not precise, but would usually include marriages of
less than two years and may include longer marriages, if there are no significant
intervening factors.
Typical outcome:
• the court will attempt to restore the parties to their premarital status.
• any increase/decrease in net worth is shared equally, but see Section II above.
• A different outcome may be expected if one party has become economically
disadvantaged by a significant intervening factor, for example:
o development of a serious health problem.
o financial set back resulting from the marriage, such as giving up
employment or relocating.
o When one or more equitable factors dictates an unequal property division:
Source/contribution, sometimes difficult to differentiate from "separate property" claim,
see III above.
Need/health/age/disparity in income, though often adjusted through spousal support.
Fault, cannot be given disproportionate weight. Sparks v Sparks, 440 Mich 141 (1992);
McDougal v McDougal, 451 Mich 80 (1996).
Fault in the breakdown of the marriage rarely dictates a disproportionate property
division unless the conduct is extreme or has economic consequences. Examples:
• Significant abuse - physical or emotional.
• Blatant infidelity - particularly combined with diversion of income or assets.
• Wanton dissipation of assets.
• Criminal conduct.
Fault is not a basis for punitive inequitable division. If fault is established and there is no
countervailing factor, shift would rarely exceed 5-10%.
Fraudulent transfer or concealment of assets. In some cases, the hidden asset could be
awarded wholly to the innocent spouse, but there is no automatic rule of forfeiture. Sands
v Sands, 442 Mich 30 (1993).


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 IV. Special Property Issues
Prenuptial agreement controls if valid. Validity factors include:
• Full disclosure of material facts before contract.
• No fraud, duress, mistake or misrepresentation.
• Not unconscionable when signed.
Facts and circumstances must not have changed since execution so as to make
enforcement unfair and unreasonable. See Rinvelt v Rinvelt, 190 Mich App 372 (1991).
Advanced degree obtained during marriage as an end-product of a concerted family
effort. Postema v Postema, 189 Mich App 89 (1991).
Valuation date of assets.
Discretionary based on equities.
Typically, date of trial.

Family Division: Referee Hearings

Jurisdiction
A referee may hear any domestic relations issue expressly referred by the Family Court Judge,
and additional issues stipulated to by the parties.

Scheduling
No hearing may be scheduled until an order of referral is entered by the Court. It is the obligation
of counsel to contact the Friend of the Court to schedule a hearing within 14 days of the Order.

Adjournments
Adjournments may be granted by the referee, at his or her discretion.

Pre-Hearing
In any case concerning child custody, visitation, or removal of children from the jurisdiction, the
children (four years of age or older) must be interviewed by a Friend of the Court caseworker
before the hearing. As a rule, a referee will not hear the case if these interviews have not been
completed. Interviews should be scheduled at the time the hearing is scheduled.
At least three business days prior to the hearing, each party shall submit to the referee and
opposing counsel the following:
A list of any non-party witnesses to be called. This list shall include a short statement of the
purpose and substance of the testimony (e.g. character witness, progress of the children in


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school).
In any case concerning child or spousal support, complete business and personal tax returns
(including all schedules) and W-2's of the two most recent years (and any relevant year) and
three recent pay stubs.
In any case concerning division of property, a joint listing of assets and valuations or separate
listings of assets and valuations including the written report of experts hired to evaluate property.
A memorandum with a brief statement of facts, issues presented, argument, and relief requested.
Any affidavit or other document to be relied upon by a party.
Failure to comply with these time limits may lead to adjournment of the case, with or without
costs, non-admission of the documents or testimony or other remedy at the referee's discretion.
Affidavits of non-party witnesses will not be admitted if not submitted in a timely manner.

Hearing Time
The time allotted for the hearing shall be three hours unless prior permission for an exception to
this rule has been obtained from the referee. Continuations at a later date will be held at the
referee's discretion. In any case where time restrictions are present, the referee shall have the
discretion to determine the manner in which time shall be divided among the parties and
witnesses.

Hearings
General.
Prior to the hearing the referee may meet with counsel to discuss the parameters of the
case and the conduct of the hearing.
The hearing may take a variety of forms, including "round table" discussion, a formal
hearing, or an informal hearing, at the discretion of the referee.
In most cases testimony will be taken. The referee, in his or her discretion, may limit the
scope of this testimony. The referee shall also have the authority to limit the number of
witnesses to be called by a litigant.
Children of the parties, adult or minor, should not be brought to the hearing without prior
agreement of the referee.

Evidence.
Evidence not admissible by Court Rule may be permitted by the referee to allow the hearing to
proceed expeditiously. Evidentiary objections will be considered in determining the weight and
credibility of the evidence.

Tardiness
The tardiness of a party (or counsel) may give rise to entry of costs against the negligent party.


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Transcripts/Recording
Hearings will be recorded. Copies of the tape may be purchased for $20 per tape upon written
request with a copy to the other side. The tapes of a hearing will be preserved by the Friend of
the Court for one year from the date of hearing.

Witnesses
Witnesses may be sworn. The number of non-party witnesses may be limited by the referee. If
an expert witness will be called, contact the referee before the hearing to set a specific time for
the expert's testimony.

Recommendation
The Referee will issue a written report with recommendations on any issues not resolved at the
hearing.

Communications with Referee

Counsel may contact the referee directly for scheduling or other minor procedural questions.
Substantive or significant procedural issues will only be addressed in a phone conference which
includes opposing counsel, a scheduled meeting, or by letter to the referee with a copy to
opposing counsel. If by letter, the referee will wait 10 days for a response from opposing
counsel before responding to the letter.

Spouse - Removal from Marital Home

Introduction
The risk presented to children by having to live in an abusive home or in a conflicted home is
great. The risk of a bad decision is less harmful to children, than living with both parents in
abusive or conflicted situations.

I. Requires Motion and hearing

If one of the following is presented to the satisfaction of the Judge, petition should be
granted:
• Respondent has abused or threatened children with injury.
• Respondent has abused or threatened petitioner with injury.
• Respondent has damaged property.
If none of the above (A1,A2 or A3) are established but the atmosphere at the home is so
conflicted that children are being hurt by it. First, determine level of conflict:


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 • Low level: send to FOC or evaluator before granting order.
• Medium/high: leave historically more "primary" parent with children in home.

II. If an order for removal is granted, the following relief should also be addressed,
if relevant
If the families’ economic resources do not permit the "primary" parent to stay, then the
Order should generally specify where that parent can live with the children.
Parenting time - minimize parental contact at transition times.
Child support.
Spousal support.
Personal Protection Order.
Referral to Friend of the Court.
Schedule an evidentiary hearing.

Family Division: Spouse Support

Introduction
The general goal of temporary support is equitable distribution of parties' present incomes given
their respective financial responsibilities for family expenses during the pendency of the case.
Temporary orders should preserve status quo at time of filing.
Permanent support is equitable distribution of the parties' future incomes given their respective
financial conditions. By the time of the FOC referee hearing or trial, the claimant should have
employment or education plans.

I. Ex Parte Orders
Should preserve the status quo:
• If parties are living together; or
• If separated with an established bill paying arrangement.
Factors to consider:
• Disparity in incomes.
• Temporary possession of children and child support order.
• If the parties are living together and a party alleges facts to support the fear this
may be changed.
Misrepresentation of the status quo may result in sanctions.


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 Order should include language that it becomes a temporary order of the Court from the
date of service until further order of the Court.

II. Temporary spousal support

May be requested by motion at any time prior to trial.
The right to temporary support begins with the filing and service of motion.
Attorney requesting support should provide the Court and other side with recent FOC
spousal support guideline printout.
Affidavit alleging sufficient facts including:
• length of marriage
• income of claimant
• education of the claimant
• income of payer (difference between parties’ incomes)
• ability of parties to work
• who pays which bills
• debt load of parties--who pays and how much
• possession of minor children
• child support obligation under the guidelines
• health of parties
Order should include referral to FOC Evaluator or FOC Referee.
Refer to Evaluator unless the case includes any of the following, in which case, refer to
Referee:
• self-employed party
• income imputation issues
• any significant property disputes
If a referral is made to Referee and there are issues of custody/parenting time, an
Evaluator interview with the minor children should be scheduled before the Referee
Hearing.

III. Permanent spousal support

Consider FOC recommendation for accuracy and review parties' objections for relevancy.
Consider additional evidence:
• Was the income used accurate?
• If income is imputed, is it reasonable?
• How great is the disparity?
• Age: date of filing + six months.


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 • Length of marriage: date of filing + six months.
• Education: was the level selected appropriate to the facts?
• Number of children born during the marriage.
When evaluating the FOC guideline recommendation the trier of fact will look at the
"bottom line": does the recommendation make sense given the parties’ responsibilities for
children, the labor market, and other family obligations.
When a family of 3 splits into 2 person + 1 person households, the 2 person household
needs about 57% of total family income to retain the same lifestyle as the 1 person
household.
When a family of 4 splits into 3 person + 1 person households, the 3 person household
needs about 62.5% of total family income to retain the same lifestyle as the 1 person
household.
The lower the total family income, the more important the percentages in 1, and 2, above,
become.
If incomes are high enough this equalization of lifestyles is less crucial.
The "mail box" principle may apply: to wit, it is harder to get up in the morning and work
a 12 hour shift at Ford Motor than it is to walk to the mail box and pick up a check. If
recipient is also working 40 hours, the "mail box" principle doesn't apply.
When guidelines specify spousal support for a term of years, a reservation after that term
should be considered when:
• health issues are present.
• claimant’s ability to succeed in labor market is uncertain.
• any long term marriage, not otherwise qualifying for permanent alimony
• age of claimant is relevant
When no spousal support is recommended, it may be reserved for any of the factors in C,
above, or for other equitable reasons.

Verified Personal Financial Statement

The purpose of the personal financial statement is to provide complete, timely disclosure of
financial information in order to facilitate settlement and minimize the need for extensive
interrogatories.
Verified Personal Financial Statement--(PDF)


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