HB-4776, As Passed Senate, June 23, 2004
SENATE SUBSTITUTE FOR
HOUSE BILL NO. 4776
A bill to amend 1982 PA 294, entitled
"Friend of the court act,"
by amending sections 2, 2a, 3, 4, 4a, 7, and 9 (MCL 552.502,
552.502a, 552.503, 552.504, 552.504a, 552.507, and 552.509),
sections 2, 2a, and 9 as amended by 2002 PA 571, section 3 as
amended by 1996 PA 365, sections 4 and 4a as added by 1996 PA
366, and section 7 as amended by 1996 PA 144, and by adding
section 7a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 2. As used in this act:
2 (a) "Bureau" means the state friend of the court bureau
3 created in section 19.
4 (b) "Centralizing enforcement" means the process authorized
5 under section 10 of the
office of the child support act, 1971
6 PA 174, MCL 400.231
to 400.240.
1 (c) "Chief judge" means the following:
2 (i) The circuit judge in a judicial circuit having only 1
3 circuit judge.
4 (ii) Except in the county of Wayne, the chief judge of the
5 circuit court in a judicial circuit having 2 or more circuit
6 judges.
7 (iii) In the county of Wayne, the executive chief judge of
8 the circuit court in the third judicial circuit.
9 (d) "Citizen advisory committee" means a citizen friend of
10 the court advisory committee established as provided in section
11 4.
12 (e) "Consumer reporting agency" means a person that, for
13 monetary fees or dues, or on a cooperative nonprofit basis,
14 regularly engages in whole or in part in the practice of
15 assembling or evaluating consumer credit information or other
16 information on consumers for the purpose of furnishing consumer
17 reports to third parties, and that uses any means or facility of
18 interstate commerce for the purpose of preparing or furnishing
19 consumer reports. As used in this subdivision, "consumer report"
20 means that term as defined in section 603 of the fair credit
21 reporting act, title VI of the consumer credit protection act,
22 Public Law 90-321, 15 U.S.C.
USC 1681a.
23 (f) "County board" means the county board of commissioners in
24 the county served by the office. If a judicial circuit includes
25 more than 1 county, action required to be taken by the county
26 board means action by the county boards of commissioners for all
27 counties composing that circuit.
House Bill No. 4776 as amended June 23, 2004
1 (g) "Court" means the circuit court.
2 (h) "Current employment" means employment within 1 year
3 before a friend of the court request for information.
4 (i) "Custody or parenting time order violation" means an
5 individual's act or failure to act that interferes with a
6 parent's right to interact with his or her child in the time,
7 place, and manner established in the order that governs custody
8 or parenting time between the parent and the child and to which
9 the individual accused of interfering is subject.
10 (j) "De novo hearing" means a <<new judicial consideration of a
11 matter previously heard by a referee.
12
13
14 >>
15 (k) (j) "Department"
means the family independence agency.
16 (l) (k) "Domestic
relations matter" means a circuit court
17 proceeding as to child custody or parenting time, or child or
18 spousal support, that arises out of litigation under a statute of
19 this state, including, but not limited to, the following:
20 (i) 1846 RS 84, MCL 552.1 to 552.45.
21 (ii) The family support act, 1966 PA 138, MCL 552.451 to
22 552.459.
23 (iii) Child custody act of 1970, 1970 PA 91, MCL 722.21 to
24 722.31.
25 (iv) 1968 PA 293, MCL 722.1 to 722.6.
26 (v) The paternity act, 1956 PA 205, MCL 722.711 to 722.730.
27 (vi) Revised uniform reciprocal enforcement of support act,
1 1952 PA 8, MCL 780.151 to 780.183.
2 (vii) Uniform interstate family support act, 1996 PA 310, MCL
3 552.1101 to 552.1901.
4 (m) (l) "Domestic
relations mediation" means a process by
5 which the parties are assisted by a domestic relations mediator
6 in voluntarily formulating an agreement to resolve a dispute
7 concerning child custody or parenting time that arises from a
8 domestic relations matter.
9 (n) (m) "Friend
of the court" means the person serving
10 under section 21(1) or appointed under section 23 as the head of
11 the office of the friend of the court.
12 (o) (n) "Friend
of the court case" means a domestic
13 relations matter that an office establishes as a friend of the
14 court case as required under section 5a. The term "friend of the
15 court case", when used in a provision of this act, is not
16 effective until on and
after the effective date of section 5a
17 December 1, 2002.
18 (p) (o) "Income"
means that term as defined in section 2 of
19 the support and parenting time enforcement act, 1982 PA 295, MCL
20 552.602.
21 Sec. 2a. As used in this act:
22 (a) "Medical assistance" means medical assistance as
23 established under title
XIX of the social security act, chapter
24 531, 49 Stat. 620, 42
U.S.C. 42 USC 1396 to 1396r-6
and 1396r-8
25 to 1396v.
26 (b) "Office" and "office of the friend of the court" mean an
27 agency created in section 3.
1 (c) "Payer" means a person ordered by the circuit court to
2 pay support.
3 (d) "Public assistance" means cash assistance provided under
4 the social welfare act, 1939 PA 280, 400.1 to 400.119b.
5 (e) "Recipient of support" means the following:
6 (i) The spouse, if the support order orders spousal support.
7 (ii) The custodial parent or guardian, if the support order
8 orders support for a minor child or a child who is 18 years of
9 age or older.
10 (iii) The family independence agency, if support has been
11 assigned to that department.
12 (f) "State advisory committee" means the committee
13 established by the bureau under section 19.
14 (g) "State disbursement unit" or "SDU" means the entity
15 established in section 6 of the office of child support act, 1971
16 PA 174, MCL 400.236.
17 (h) "Support" means all of the following:
18 (i) The payment of money for a child or a spouse ordered by
19 the circuit court, whether the order is embodied in an interim,
20 temporary, permanent, or modified order or judgment. Support may
21 include payment of the expenses of medical, dental, and other
22 health care, child care expenses, and educational expenses.
23 (ii) The payment of money ordered by the circuit court under
24 the paternity act, 1956 PA 205, MCL 722.711 to 722.730, for the
25 necessary expenses incurred by or for the mother in connection
26 with her confinement, for other expenses in connection with the
27 pregnancy of the mother, or for the repayment of genetic testing
1 expenses.
2 (iii) A surcharge accumulated under section 3a of
the
3 support and parenting time enforcement act, MCL 552.603a.
4 (i) "Support and parenting time enforcement act" means 1982
5 PA 295, MCL 552.601 to 552.650.
6 (j) "Support order" means an order entered by the circuit
7 court for the payment of support in a sum certain, whether in the
8 form of a lump sum or a periodic payment.
9 (k) "Title IV-D" means part D of title IV of the social
10 security act, chapter
531, 49 Stat. 620, 42 U.S.C. 42 USC 651
11 to 655, 656 to 657, 658a to 660, and 663 to 669b.
12 (l) "Title IV-D agency" means that term as defined in section
13 2 of the support and parenting time enforcement act, MCL
14 552.602.
15 Sec. 3. (1) There is created in each judicial circuit of
16 this state an office of the friend of the court, except as
17 provided in subsection (2).
18 (2) If each county in a multicounty judicial circuit has a
19 separate office of the friend of the court on the day before the
20 effective date of this act, each county in that circuit shall
21 have a separate office of the friend of the court on the
22 effective date of this act. If a vacancy occurs in the position
23 of the friend of the court in such a county, the chief judge may
24 merge the office of the friend of the court in that county with
25 the office of the friend of the court in another county of the
26 judicial circuit.
27 (3) The head of each office is the friend of the court
1 serving under section
21(1) or appointed pursuant according to
2 section 23.
3 (4) Except as
provided in this subsection, the The friend
4 of the court is an employee of the circuit court in the judicial
5 circuit served by the
friend of the court. The friend of the
6 court for the third
judicial circuit, and for any other judicial
7 circuit in which the
employees serving in the court are paid by
8 the state, is an
employee of the state judicial council.
9 (5) The duties of the office shall be performed under the
10 direction and supervision of the chief judge.
11 (6) Except as otherwise required by federal law on cases that
12 are eligible for funding under title IV-D, the friend of the
13 court is only required to perform activities under this act or
14 the support and parenting time enforcement act when a party in
15 that case has requested title IV-D services.
16 (7) (6) Each
friend of the court shall take all necessary
17 steps to adopt office
procedures to implement this act, supreme
18 the Michigan court rules, and the recommendations of the bureau.
19 Office of the friend of the court duties shall be performed in
20 accordance with the
Elliott-Larsen civil rights act, Act No. 453
21 of the Public Acts of
1976, being sections 37.2101 to 37.2804 of
22 the Michigan Compiled
Laws 1976 PA 453, MCL 37.2101 to
37.2804.
23 (8) (7) An
office of the friend of the court must shall
24 be open to the public making available all of the office's
25 services not less than 20 hours each month during nontraditional
26 office hours. This subsection
shall does not be construed to
27 require an office of the friend of the court to be open for a
1 greater number of hours than it was required to be open before
2 the effective date of
the requirement under this subsection
3 January 1, 1997.
4 Sec. 4. (1) A Each
county may establish a citizen friend
5 of the court advisory
committee is established in each county
6 and is composed of the following members, each of whom is a
7 resident of the county:
8 (a) An advocate
for children.
9 (a) (b) A
representative of noncustodial parents
10 parent.
11 (b) (c) A
representative of custodial parents parent.
12 (c) (d) An
attorney who engages primarily in family law
13 practice.
14 (d) (e) The
county sheriff or the sheriff's designee.
15 (e) (f) The
prosecuting attorney or the prosecuting
16 attorney's designee.
17 (f) (g) The
director of the family independence agency or
18 the director's designee.
19 (g) (h) A
mental health professional who provides family
20 counseling.
21 (h) (i) A
member of the general public who is not an
22 individual who could
serve Two members of the general
public who
23 are not serving on the committee in a category listed in
24 subdivisions (a) to (h)
(g).
25 (2) Except for a
member serving under subsection (1)(e),
26 (f), or (g) (1)(d), (e), or (f), and except as otherwise
27 provided in this subsection, the county board shall appoint the
1 citizen advisory committee members. In a county organized under
2 Act No. 293 of the
Public Acts of 1966, being sections 45.501 to
3 45.521 of the Michigan
Compiled Laws 1966 PA 293, MCL
45.501 to
4 45.521, the county executive shall appoint the citizen advisory
5 committee members with the advice and consent of the county
6 board, and shall exercise the other powers and duties prescribed
7 for the county board by this section in regard to the citizen
8 advisory committee.
9 (3) A vacancy on the citizen advisory committee shall be
10 filled for the remainder of the term in the same manner as the
11 position was originally filled. The county board shall attempt
12 to compose the citizen advisory committee so that its membership
13 reflects the ethnic, racial, and gender distribution of the
14 community that it serves.
15 (4) Except for
the initial members, a citizen advisory
16 committee member shall
serve a renewable 3-year term. Of the
17 initial members, 3
shall serve 3-year terms, 2 shall serve 2-year
18 terms, and 2 shall
serve 1-year terms. The county board may
19 remove a citizen
advisory committee member for cause. Committee
20 members shall serve renewable terms of 3 years for each time
21 appointed. Members appointed under subsection (1)(a), (b), (c),
22 (g), and (h) shall serve initial terms of 3 years for 2 members,
23 2 years for 2 members, and 1 year for 2 members to allow 1/3 of
24 those members to be appointed to the committee each year.
25 (5) A citizen advisory committee shall elect 1 of its members
26 as chairperson and 1 as
vice-chairperson. Each shall serve a
27 1-year term.
1 (6) The state
court administrative office shall perform
2 staff and support
functions that are necessary for a A
citizen
3 advisory committee to
perform its duties and functions shall
4 honor any guidelines established by the state court
5 administrative office for a friend of the court office pertaining
6 to citizen advisory committees.
7 (7) Except for a
member serving under subsection (1)(e),
8 (f), or (g) (1)(d), (e), or (f), a citizen advisory
committee
9 member shall not serve more than 2 consecutive terms. After
10 completion of 2 consecutive terms, a former member shall not be
11 reappointed to serve during the 2 years immediately following the
12 end of his or her previous term.
13 Sec. 4a. (1) A citizen advisory committee is advisory only.
14 and Once established, the citizen advisory committee
shall do
15 all of the following:
16 (a) Meet not less than 6 times annually. The citizen
17 advisory committee shall keep minutes of each meeting and submit
18 a copy to the county board.
19 (b) Review and investigate grievances concerning the friend
20 of the court as provided in section 26.
21 (c) Advise the court and the county board on the office of
22 the friend of the court's and the friend of the court's duties
23 and performance, and on the community's needs relating to the
24 office's services.
25 (d) At the end of each calendar year, submit an annual report
26 of its activities to the county board, court, state court
27 administrative office, governor's office, and standing senate and
1 house committees and appropriations subcommittees that are
2 responsible for legislation concerning the judicial branch.
3 (2) A citizen advisory committee chairperson may appoint
4 subcommittees comprised of 3 committee members to review,
5 investigate, and hold hearings on grievances submitted to the
6 citizen advisory committee as provided in section 26. The
7 chairperson may serve on such
a grievance subcommittee and
8 shall attempt to appoint members so that each member has an equal
9 opportunity for subcommittee participation.
10 (3) Except as otherwise provided in this subsection, a
11 citizen advisory
committee meeting shall be is open to the
12 public. A member of the public attending a meeting shall be
13 given a reasonable opportunity to address the committee on an
14 issue under consideration by the committee. If a vote is to be
15 taken by the citizen advisory committee, the opportunity to
16 address the committee shall be given before the vote is taken. A
17 citizen advisory committee meeting, including a meeting of a
18 subcommittee appointed under subsection (2), is not open to the
19 public while the committee or subcommittee is reviewing,
20 investigating, or holding a hearing on a grievance as provided in
21 section 26.
22 Sec. 7. (1) The
chief judge may designate as referee the
23 friend of the court;
an employee of the office who is a member of
24 the state bar of
Michigan; or, under section 22, a member of the
25 state bar of Michigan a referee as provided by the Michigan
26 court rules.
27 (2) A referee may do all of the following:
1 (a) Hear all motions in a domestic relations matter, except
2 motions pertaining to an increase or decrease in spouse support,
3 referred to the referee by the court.
4 (b) Administer oaths, compel the attendance of witnesses and
5 the production of documents, and examine witnesses and parties.
6 (c) Make a written, signed report to the court containing a
7 summary of testimony given, a statement of findings, and a
8 recommended order; or make a statement of findings on the record
9 and submit a recommended order.
10 (d) Hold hearings as provided in the support and parenting
11 time enforcement act, Act
No. 295 of the Public Acts of 1982,
12 being sections 552.601
to 552.650 of the Michigan Compiled Laws
13 MCL 552.601 to 552.650. The referee shall make a record of each
14 hearing held.
15 (e) Accept a voluntary acknowledgment of support liability,
16 and review and make a recommendation to the court concerning a
17 stipulated agreement to pay support.
18 (f) Recommend a default order establishing, modifying, or
19 enforcing a support obligation in a domestic relations matter.
20 (3) If ordered by the court, or if stipulated by the parties,
21 a referee shall make a transcript, verified by oath, of each
22 hearing held. The cost of preparing a transcript shall be
23 apportioned equally between the parties, unless otherwise ordered
24 by the court.
25 (4) A copy of
each report, recommendation, transcript, and
26 any supporting
documents or a summary of supporting documents
27 prepared or used by
the friend of the court or an employee of the
House Bill No. 4776 as amended June 23, 2004 1 of 2
1 office shall be made
available to the attorney for each party and
2 to each of the parties
before the court takes any action on a
3 recommendation made
under this section or section 5. In a child
4 custody dispute, the
parties shall be informed of whether a
5 custody preference
expressed by the child was considered,
6 evaluated, and determined
by the court, but the parties shall not
7 be informed of the
preference expressed by the child under
8 section 3 of the child
custody act of 1970, Act No. 91 of the
9 Public Acts of 1970,
being section 722.23 of the Michigan
10 Compiled Laws. If a
guardian is appointed for a child, the
11 guardian shall be
informed whether a custody preference expressed
12 by the child was
considered, evaluated, and determined by the
13 court, and, if so, the
preference expressed. The manner and time
14 within which this
material is made available shall be determined
15 by supreme court rule.
16 (4) (5) The
court shall hold a de novo hearing on any
17 matter that has been the subject of a referee hearing, upon the
18 written request of either party or upon motion of the court. The
19 request of a party shall be made within 21 days after the
20 recommendation of the referee is made available to that party.
<<(5) A hearing is de novo despite the court's imposition of reasonable restrictions and conditions to conserve the resources of the parties and the court if the following conditions are met:
(a) The parties have been given a full opportunity to present and preserve important evidence at the referee hearing.
(b) For findings of fact to which the parties have objected, the parties are afforded a new opportunity to offer the same evidence to the court as was presented to the referee and to supplement that evidence with evidence that could not have been presented to the referee.
(6) Subject to subsection (5), de novo hearings include, but are not limited to, the following:
(a) A new decision based entirely on the record of a previous hearing, including any memoranda, recommendations, or proposed orders by the referee.
(b) A new decision based only on evidence presented at the time of the de novo hearing.
(c) A new decision based in part on the record of a referee hearing supplemented by evidence that was not introduced at a previous hearing.
(7)>>
21 under subsection (4),
except that a request for a de novo
22 hearing concerning an
order of income withholding shall be made
23 within 14 days after
the recommendation of the referee is made
24 available to the party
under subsection (4). Pending a
de novo
25 hearing, the referee's recommended order may be presented to the
26 court for entry as an interim order as provided by the Michigan
27 court rules. The interim order shall be served on the parties
1 within 3 days and shall be subject to review as provided under
2 this subsection.
3 Sec. 7a. (1) A copy of each report, recommendation, and any
4 supporting documents or a summary of supporting documents
5 prepared or used by the friend of the court or an employee of the
6 office shall be made available to the attorney for each party and
7 to each of the parties before the court takes any action on a
8 recommendation by the office.
9 (2) In a child custody dispute, the parties shall be informed
10 of whether a custody preference expressed by the child was
11 considered, evaluated, and determined by the judge, referee, or
12 employee of the friend of the court. The parties shall not be
13 informed of the preference expressed by the child under section 3
14 of the child custody act of 1970, 1970 PA 91, MCL 722.23.
15 (3) If a guardian is appointed for a child, the guardian
16 shall be informed whether a custody preference expressed by the
17 child was considered, evaluated, and determined by the judge,
18 referee, or employee of the friend of the court, and, if so, the
19 preference expressed.
20 (4) The manner and time within which the information required
21 under this section is made available shall be determined by the
22 Michigan court rules.
23 Sec. 9. (1) Except as otherwise provided in subsections (2)
24 and (3), or in
the order or judgment, after a support order is
25 entered in a friend of the court case, the office shall receive
26 each payment and service fee under the support order; shall, not
27 less than once each month, record each support payment due, paid,
1 and past due; and shall disburse each support payment to the
2 recipient of support within 14 days after the office receives
3 each payment or within the federally mandated time frame,
4 whichever is shorter.
5 (2) An office shall receive support order and service fee
6 payments, and shall disburse support, as required by subsection
7 (1) until the state disbursement unit implements support and fee
8 receipt and disbursement for the cases administered by that
9 office. At the family independence agency's direction and in
10 cooperation with the SDU, an office shall continue support and
11 fee receipt and support disbursement to facilitate the transition
12 of that responsibility to the SDU as directed in, and in
13 accordance with the transition schedule developed as required by,
14 the office of child support act, 1971 PA 174, MCL 400.231 to
15 400.240.
16 (3) After SDU support and fee receipt and disbursement is
17 implemented in a circuit court circuit, the office for that court
18 may accept a support payment made in cash or by cashier's check
19 or money order. If the office accepts such a payment, the office
20 shall transmit the payment to the SDU and shall inform the payer
21 of the SDU's location and the requirement to make payments
22 through the SDU.
23 (4) Promptly after November 3, 1999, each office shall
24 establish and maintain the support order and account records
25 necessary to enforce support orders and necessary to record
26 obligations, support and fee receipt and disbursement, and
27 related payments. Each office shall provide the SDU with access
1 to those records and shall assist the SDU to resolve support and
2 fee receipt and disbursement problems related to inadequate
3 identifying information.
4 (5) The office shall provide annually to each party, without
5 charge, 1 statement of account upon request. Additional
6 statements of account shall be provided at a reasonable fee
7 sufficient to pay for the cost of reproduction. Statements
8 provided under this subsection are in addition to statements
9 provided for administrative and judicial hearings.
10 (6) The office shall initiate and carry out proceedings to
11 enforce an order in a friend of the court case regarding custody,
12 parenting time, health care coverage, or support in accordance
13 with this act, the support and parenting time enforcement act,
14 and supreme court rules.
15 (7) Upon request of a child support agency of another state,
16 the office shall initiate and carry out certain proceedings to
17 enforce support orders entered in the other state without the
18 need to register the order as a friend of the court case in this
19 state. The order shall be enforced using automated
20 administrative enforcement actions authorized under the support
21 and parenting time enforcement act.
22 Enacting section 1. This amendatory act takes effect
23 October 1, 2004.