Opting In/Opting Out
Requirement to Open FOC Case; Authorization for Parties to Opt Out
Michigan law requires the Friend of the Court to open and maintain a case for each domestic relations matter, unless the parties opt out of the Friend of the Court system. When parties opt out, they assume full responsibility for the administration and enforcement of the court's orders, and the Friend of the Court no longer maintains an open file.
Statutory Procedure to Opt Out
In new and existing domestic relations cases, parties who agree to manage their own case must file a motion, sign an acknowledgement: Advice of Rights Regarding Use of Friend of the Court Services, which lists services that the Friend of the Court provides. Both parties appear before the Court on the scheduled hearing date to provide sworn testimony of qualification for opting out. By signing the form, the parties acknowledge that they will NOT receive the services.
The court must approve the agreement and enter an order directing the Friend of the Court to close its case file unless the court determines that one or more of the following are true:
- A party objects to the motion.
- A party is eligible for Title IV-D services because the party is receiving public assistance (see Section 3, "Public Assistance", below).
- A party is eligible for Title IV-D services because the party formerly received public assistance and an arrearage is owed to the governmental entity that provided the assistance.
- The record shows that a child support arrearage or custody or parenting time order violation occurred within the previous 12 months.
- Within the previous 12 months, a party to the case reopened this or another FOC case.
- There is evidence of domestic violence or uneven bargaining positions and evidence that a party's decision to opt out of the FOC system is against the best interests of the party or a child.
- The parties have not filed the Advice of Rights Regarding Use of Friend of the Court Services, which lists the available Friend of the Court services and acknowledging that the parties are choosing to do without those services.
The law prohibits parties from closing their Friend of the Court file if they are receiving or have received public assistance and an arrearage is owed to the state. Public assistance includes programs such as Temporary Assistance to Needy Families, (TANF), Medicaid, Food Assistance Program (FAP), child day care, and foster care.
Other factors that will prevent the parties from opting out of the Friend of the Court system include a history of domestic violence or uneven bargaining positions between the parties. If domestic violence has occurred, a party may feel coerced to opt out of Friend of the Court system even though doing so is against the party's or the child's best interests. The court may wish to check the record for certain indicators of abuse, such as personal protection orders.
When an Friend of the Court case file is closed and support payments are, at that time, being paid through income withholding, the Friend of the Court will send notice to terminate the income withholding to the payer's employer.
Services the FOC cannot provide
Once an order exempting a case from Friend of the Court services has been entered, the parties assume full responsibility for the administration and enforcement of the court's orders. The Friend of the Court cannot be involved in enforcement, investigation, or accounting functions for support, custody, or parenting time.
Reopening an FOC Case (Opt In)
Parties who have opted out of Friend of the Court services may change their minds. If either party requests services from the Friend of the Court, or applies for public assistance, the Friend of the Court is required to open (or re-open) its case file.
A party should file Request to Reopen Friend of the Court Case, Verified Statement, an Application for IV-D Child Support Services with the Friend of the Court and send a copy of the Request to Reopen form to the other party's last known address and to the court. The case file will be reopened when the Friend of the Court receives this information. The other party cannot object to the case being reopened.
When parties opt back into the Friend of the Court system, they may have support orders that do not satisfy statutory requirements for Friend of the Court cases. If the court order does not contain a provision that is required by either the Friend of the Court Act, the Support and Parenting Time Enforcement Act, or court rule. Upon opening or reopening Friend of the Court case file, the court must issue an order or amended order that includes the statutory provisions. A motion may be filed for any specific relief.
If there is a dispute about support payments made during the time the case was NOT a Friend of the Court case, and the disputed payments were to have been made directly between the parties, the Friend of the Court does not have any evidence of those payments. The Friend of the Court cannot intervene other than to let the parties know they will need a judicial determination of the payment history. After parties opt back into the Friend of the Court, parties are encouraged to file a motion regarding custody, parenting time, or child support to update or change their orders.
*OPTING IN/OPTING OUT Forms are available at the link above or the FORMS tab.