Opting Out of Michigan Friend of the Court Services

Let's face it...the Friend of the Court is about as popular with Michiganders as the Secretary of State's Office. As a branch of the family division of the Michigan Circuit Court system, the Friend of the Court, or FOC, is supposed to be the eyes and ears of the Court, and among other things, is entrusted with making recommendations to judges concerning child support, child custody and visitation in divorce cases. FOC recommendations are to be considered by the Court, but ultimately it's the responsibility of judges to make rulings that are in the best interests of the children, even if that means disregarding the FOC recommendation entirely.

However, it has become a popular belief that the Friend of the Court wields far too much power and that rather than improving the efficiency of cases and promoting the best interests of children, that it frequently complicates routine family law proceedings and further polarizes parents. If you agree with that position and you want to keep the Friend of the Court out of your Michigan divorce case, you may be able to opt-out of FOC services.

Who Can Opt Out of FOC Services

Under Michigan law, the Friend of the Court must open and maintain a case for all domestic relations matters, including divorces, unless the parties opt out. However, not every case is eligible for opt-out. In order to successfully refuse FOC involvement in your case, all of the following must be true:

  1. Both parents must both agree that they don't want FOC services and must sign the required opt-out paperwork.
  2. Neither parent can be eligible for Title IV-D because of that parent's current or past receipt of government assistance (i.e. cash assistance (Family Independence Program (FIP)), Child Development and Care (CDC), Food Assistance Program (FAP, food stamps), Medicaid, or foster care).
  3. Neither parent has applied for Title IV-D services.
  4. Neither parent has requested FOC services.
  5. Neither parent owes money to the State of Michigan.
  6. There can't be evidence of domestic violence or uneven bargaining positions with evidence that a parents’s failure to apply for title IV-D services is against the best interests of the parent or a child.

Filing Documents to Opt Out

Assuming you are eligible, you can opt out of Friend of the Court services after your divorce case has been filed and you have a case number. If you’re using DivorceWriter, you can file the opt out documents at the same time as the Step 2 documents listed on the step-by-step filing procedures included with your DivorceWriter documents.

Both spouses must sign and date the Advice of Rights Regarding Use of Friend of the Court Services and the Motion to Exempt (Opt Out) of Friend of the Court Services. File both documents at the Court Clerk’s office. Also take the Request for Hearing on a Motion, Notice of Hearing and Proof of Service and the Order Exempting Case from Friend of the Court Services. If the Court Clerk tells you that your county does not require a hearing on a Motion to Opt Out, you can discard the Request for Hearing on a Motion, Notice of Hearing and Proof of Service. If no hearing is required in your county, now is also the time for filing the Order Exempting Case from Friend of the Court Services. Also ask the Clerk if you need to take a copy of the Motion to Opt-Out to the Judge’s office. If so, write “Judge’s Copy” on one copy and take it to the judge’s office before you leave the courthouse.

Scheduling a Hearing on the Motion to Opt-Out

In most counties, including Kent, Macomb, Oakland, and Wayne, both spouses have to attend a hearing on the Motion to Opt-Out. While you are at the Court Clerk’s office filing the Advice of Rights and Motion to Opt Out, ask for a hearing date on your Motion to Opt Out. When the Court Clerk gives you the hearing date, fill in the name of your judge, the date and the time in section 6 on the Request for Hearing on a Motion, Notice of Hearing and Proof of Service. Then, Plaintiff signs and dates at the end of section 6. Note: After filing, Plaintiff sends a copy of this completed form to Defendant, and then Plaintiff signs and dates the Proof of Service in section 7 at the end of the Request for Hearing on a Motion. Make sure you take the Request for Hearing with the completed Proof of Service to the hearing with you to the hearing. If a hearing is required, both spouses must attend. The Judge will sign the Order Exempting Case from Friend of the Court Services after your hearing.

Deciding Whether to Opt-Out

Despite being understaffed and underfunded, for more than 100 years, the Friend of the Court has provided many useful and important services to the family division of the Michigan Circuit Court system, including enforcement of child support, custody and visitation orders. Assuming you are eligible to opt out, it's important to first consider what you are giving up by doing so.

Know What You're Giving Up

If you refuse FOC services, you have to refuse them all--there's no picking and choosing among services. Moreover, if you opt out you're no longer entitled to FOC enforcement services if child support or custody disputes arise in the future, which they often do. That means you'll have to go back to court and either hire an attorney or represent yourself. Even if you have a divorce judgment that states that Friend of the Court opt-in will be triggered if a child support arrearage accrues, you'll still have to go back to Court to get the opt-in ordered.

In an uncontested divorce, it's easy to think you will never need the Friend of the Court. However, it's simply impossible to know now if you would benefit from FOC services in the future. That being said, for many, the FOC's reputation as a source of unnecessary bureaucratic red tape outweighs any future benefit the agency may bestow should relations between parents go south after post-divorce.

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