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Doug Dante Updated Jul 29, 2009 DougDante1@yahoo.com I am not a lawyer and this is not legal advice. The Oakland County Friend of the Court is harming children by ignoring Michigan law by mixing mediation investigation, and referee duties in the family counselor position.
Some General Concerns for any Local Michigan Friend of the Court
Other concerns about the Oakland County Friend of the Court are general concerns for any FOC, but they are worth mentioning here: The court has a financial conflict of interest that may discourage joint physical custody or the higher earning parent to obtain custody of children: http://www.scribd.com/doc/630611/A-Quick-Summary-of-Title-IVD-Funding-and-Incentives Some local FOCs may delay or deny legitimate child support modification requests: http://www.scribd.com/doc/458394/Michigan-Friend-of-the-Court-Child-Support-ModificationRequest Or refuse to respond to legitimate parenting time violations: http://www.scribd.com/doc/550881/When-the-Friend-of-the-Court-Doesnt-Respond-To-ParentingTime-Violations Or engage in troubling retaliatory practices: http://www.scribd.com/doc/454566/Racketeering-in-Michigans-Friend-of-the-Court http://www.scribd.com/doc/959159/When-Might-a-Federal-Racketeering-Lawsuit-Be-Allowable Or may operate without knowledge of problems that fatherlessnes cause for children: http://www.scribd.com/doc/425877/The-Effects-of-Divorce-and-Sole-Custody-on-ChildrenAny local FOC is under the direction of the SCAO (State Court Administrative Office) which created the troubling CSPR (or CSPER) report, and the federal dollars also extend the financial conflict of interest from the courts to the local Prosecuting Attorneys: http://www.scribd.com/doc/477791/A-Review-of-the-CSPER-Report http://courts.michigan.gov/scao/services/focb/CSPR12-06ReportAndRecommendations.pdf Some local FOCs may improperly use internal mediators. This is one of the issues with the Oakland County FOC job posting below. http://www.scribd.com/doc/405400/Michigan-Friend-of-the-Court-Mediator-Questions
Some local FOCs may unnecessarily delay child custody rulings, damaging the parent-child bond of the parent on the wrong side of a temporary order, and risking making any temporary order a permanent order through simple longevity: http://www.scribd.com/doc/509712/What-if-The-Court-Fails-to-Rule-Promptly-on-Custody Some local FOCs may fail to allow contemptors to speak at contempt hearings: http://www.scribd.com/doc/406110/Some-Thoughts-For-Parents-Facing-A-Contempt-of-Court-Hearing Some local FOCs may fail to properly ensure that the civil rights of parents are respected: http://www.scribd.com/doc/404652/Fiction-John-Q-Public-and-the-Friend-of-the-Court-Before-ItBegins Some local FOCs may fail to enforce parent's rights to their children's school or medical records: http://www.scribd.com/doc/458635/Considerations-for-Getting-Your-Childs-School-Records-usingFERPA Some local FOCs may incorrectly substitute a software application for the correct child support formula manual, creating an improper support obligation that may actually cause severe poverty of the paying parent, which is not consistent with Michigan law nor in the children's best interests: http://www.scribd.com/doc/962203/Should-Software-for-Child-Support-Calculations-be-Treated-AsUnreliable Or they may fail to act in the children's interest when there is clear and convincing evidence that their custodial parent isn't using the paying parent's payments to provide for the children: http://www.scribd.com/doc/1018457/Considerations-for-when-a-Parent-Spends-Child-Support-onHimselfHerself-and-the-Court-Doesnt-Care Or they may back date forms, etc, making it difficult for parents to obtain justice: http://www.scribd.com/doc/948712/Detecting-Fraud-in-Court-Filings-Postal-Meters-ColorPrintersCopiers-and-Cartridges Or they may fail to follow court rules and allow for contemporaneous recordings, or alter recordings, or unnecessarily delay transcripts, to make it more difficult for parents to obtain justice: http://www.scribd.com/doc/2257035/Contemporaneous-Recordings-for-Referee-Hearings-in-Michigan Or they may use biased custody evaluators: http://www.scribd.com/doc/2561734/Some-Thoughts-on-Child-Custody-Hearings Or Lawyers, Referees, and Judges may fail to adhere to their ethical duty to report when other lawyers, referees, and judges have violated the Rules of Professional Conduct http://www.scribd.com/doc/2618443/YOU-are-a-mandated-reporter Or mediators may fail to meet the legal expectations of parents, and judges and referees may rubber stamp caseworker recommendations. http://www.scribd.com/doc/3123830/Michigan-Child-Custody-Survey-Report Please note how to get public information from the judiciary. http://www.scribd.com/doc/3584335/How-to-Get-Public-Information-From-the-Michigan-Judiciary
Information on the Ingham County Friend of the Court: http://www.scribd.com/doc/362198/Ingham-County-Friend-of-the-Court-Is-Ignoring-The-Law-andHurting-Kids Information on the Macomb County Friend of the Court: http://www.scribd.com/doc/3987229/Macomb-County-Friend-of-the-Court-Ignores-the-Law-andHurts-Kids
A Family Counselor Job Posting
The Oakland County Friend of the Court is harming children by ignoring Michigan law by mixing mediation investigation, and referee duties in the family counselor position. Children are harmed in two ways. Firstly, family counselors, who are not lawyers, make custody recommendations based on statements and evidence gathered without the conventional courtroom safeguards in violation of the Friend of the Court Act and other laws. Parents can make false allegations or offer false evidence without any consequences. Oakland County FOC should not make custody decisions based on which parent can lie the best. Secondly, parents are not given the opportunity for meaningful and confidential mediation, but rather are thrust into a combative atmosphere. The law requires the FOC to offer voluntary neutral and confidential mediators, because studies and common sense say that if the parents can make a rational agreement, it's probably the best option for them and their kids. Instead, family counselors make snap judgments and stick kids into cookie cutter custody arrangements such as "liberal and reasonable parenting time", when that may or may not be what's best them or their parents. An original job description from Oakland County as well as my amateur legal analysis (I am a concerned citizen; not a lawyer) are available below. Here is an e-mail message that includes a job posting for a Family Counselor position at the Oakland County Friend of the Court.
----- Original Message ---From: XXXXX To: XXXX Sent: XXX Subject: [XXX] Anyone looking for a job? or better yet, does anyone know why there is a vacancy? Job Order Number: 2498563 Job last updated: October 03, 2006 Company name: OAKLAND COUNTY PERSONNEL DEPARTMENT Product line/service: Services Web site: http://www.oakgov.com Job title: FRIEND OF COURT-FAMILY COUNSELOR CLOSING 10-2-06 Job type: Full Time Hours per week: 40 Job(s) available: 1 Job location: Pontiac
Job description: JOB NO: 100933 SALARY: BI-WEEKLY: $1,922-$2,515 DESCRIPTION OF WORK Under general supervision, provides mediation to assist parties in domestic relations matters filed with the Circuit Court in order to voluntarily resolve disputes involving child custody and/or parenting time. Conducts court ordered home investigations and office interviews in order to gather economic and environmental information concerning parties in divorce, separation or paternity proceedings involving minor dependent children. Summarizes and analyzes gathered information and prepares written recommendations regarding custody, parenting time and related matters for review and determination by a Friend of the Court Referee and/or a Family Division Judge. Provides crisis and dispute resolution counseling to educate parents about the effects of separation and divorce and assists them in generating alternative solutions regarding custody and parenting time issues. Additional requirements: MINIMUM QUALIFICATIONS At the time of application, applicants must: 1. Possess a Master's degree from an accredited college or university with a major in Psychology, Counseling, Social Work or closely related field; AND 2. Have had at least two (2) years of full time experience in family counseling; AND 3. Possess a valid motor vehicle chauffeur's or operator's license. NOTE: Applicants must bring a valid, unexpired driver?s license in order to be admitted to any portion of the examination/ appointment process. Volunteer experience may be accepted provided it is equivalent in level and scope to the required experience. At the time of application, applicants must have an official transcript sent directly to the Human Resources Department. Applicants will not be certified until such documentation has been received and evaluated CANDIDATES APPOINTED TO ANY POSITION WITH OAKLAND COUNTY MUST, PRIOR TO THE FIRST DAY OF WORK, PROVIDE ORIGINAL DOCUMENTS AS REQUIRED UND Directions to business: WORK LOCATION 1200 North Telegraph Road, Pontiac, MI 48341 Department/etc: Oakland County Circuit Court/Friend of the Court, 230 Elizabeth Lake Rd., Pontiac, MI 48341 Please apply by Phone, by Mail, in person or by Website . Contact: WEB SITE WEB SITE Business name: OAKLAND COUNTY PERSONNEL DEPARTMENT Phone: (248)858-0530 Address: 1200 North Telegraph Road Fax: Pontiac, MI 48341 Email: Web site: http://www.oakgov.com
Why I Feel The Family Counselor Position Violates Michigan Law
I feel that the position listed violates the following Michigan Court Rules and Michigan Law in the following ways: Firstly, I doubt that a direct hire is legal here. The Friend of the Court Act 552.513 Domestic relations mediation, says in part: (1) The office shall provide, either directly or by contract, domestic relations mediation to assist the parties in settling voluntarily a dispute concerning child custody or parenting time that arises in a friend of the court case. Parties shall not be required to meet with a domestic relations mediator. The service may be
provided directly by the office only if such a service is in place on July 1, 1983, if the service is not available from a private source, or if the court can demonstrate that providing the service within the friend of the court office is cost beneficial. Any expansion of existing services provided by the court on July 1, 1983 shall be provided by an individual meeting the domestic relations mediator minimum qualifications listed under subsection (4). http://www.legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-552-513 Counseling is obviously available from many private sources in Oakland County. I doubt that the court has a study on file showing that the service within the FOC office is beneficial, particularly one conducted by an independent party. This family counselor "provides mediation". However, he or she also "conducts investigations". By mixing the investigative and the mediation duties, the Oakland County FOC appears to force parties to meet with family counselors, and thus with mediators, in apparent violation of the paragraph above. Paragraphs 2 and 3 make this more clear, by requiring strict confidentiality from mediators: (2) If an agreement is reached by the parties through domestic relations mediation, a consent order incorporating the agreement shall be prepared by an employee of the office who is a member of the state bar of Michigan; under section 22, by a member of the state bar of Michigan; or by the attorney for 1 of the parties. The consent order shall be provided to, and shall be entered by, the court. (3) Except as provided in subsection (2), a communication between a domestic relations mediator and a party to a domestic relations mediation is confidential. The secrecy of the communication shall be preserved inviolate as a privileged communication. The communication shall not be admitted in evidence in any proceedings. The same protection shall be given to communications between the parties in the presence of the mediator. http://www.legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-552-513 If no agreement is reached, then there is no consent order, and the counselor, who is probably not a member of the state bar, can't work with the member of the state bar or either attorney to draw up the agreement. However, this family counselor (mediator) "prepares written recommendations regarding custody, parenting time and related matters for review and determination by a Friend of the Court Referee and/or a Family Division Judge." Mediators should never do that! It violates confidentiality. Even if they were to communicate with anyone, they should only communicate with a member of the state bar or an attorney - not the court directly, yet that's exactly what the job description says that they do! If a mediator is conducting an investigation and making recommendations that go before a Referee or Judge, then there is no way that communications with this person can be reasonably considered "confidential". If the State of Michigan didn't make it clear enough that they didn't want mediators to be investigators
too, they added MCL 552.515 Section 15, Performance by mediator of certain functions involving party prohibited: An employee of the office who performs domestic relations mediation in a friend of the court case involving a particular party shall not perform referee functions, investigation and recommendation functions, or enforcement functions as to any domestic relations matter involving that party. http://www.legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-552-513 So a family counselor that "provides mediation" cannot also "conducts investigations". But that's exactly what the advertisement below says the job is! In Oakland County, Family Counselors act as mediators. Family Counselors are assigned to a single team with a given the judge - judge has one mediator who works for him or her. This is in contradiction to the Michigan Court Rules. MCR 3.216 "Domestic Relations Mediation". It says in part: Rule 3.216 Domestic Relations Mediation (A) Scope and Applicability of Rule, Definitions. (1) All domestic relations cases, as defined in MCL 552.502(h), are subject to mediation under this rule, unless otherwise provided by statute or court rule. (2) Domestic relations mediation is a nonbinding process in which a neutral third party facilitates communication between parties to promote settlement. If the parties so request, and the mediator agrees to do so, the mediator may provide a written recommendation for settlement of any issues that remain unresolved at the conclusion of a mediation proceeding. This procedure, known as evaluative mediation, is governed by subrule (I). ... (B) Mediation Plan. Each trial court that submits domestic relations cases to mediation under this rule shall include in its alternative dispute resolution plan adopted under MCR 2.410(B) provisions governing selection of domestic relations mediators, and for providing parties with information about mediation in the family division as soon as reasonably practical. http://courtofappeals.mijud.net/rules/documents/1Chapter3SpecialProceedingsandActio ns.pdf The rules about selection of domestic relations mediators help to ensure that as many mediators as possible are selected randomly so that the participants know that those mediators are neutral. Lets look at MCR 2.410, which says in part: Rule 2.410 Alternative Dispute Resolution (A) Scope and Applicability of Rule; Definitions. (1) All civil cases are subject to alternative dispute resolution processes unless otherwise provided by statute or court rule. (2) For the purposes of this rule, alternative dispute resolution (ADR) means any
process designed to resolve a legal dispute in the place of court adjudication, and includes settlement conferences ordered under MCR 2.401; case evaluation under MCR 2.403; mediation under MCR 2.411; domestic relations mediation under MCR 3.216; and other procedures provided by local court rule or ordered on stipulation of the parties. (B) ADR Plan. (1) Each trial court that submits cases to ADR processes under this rule shall adopt an ADR plan by local administrative order. The plan must be in writing and available to the public in the ADR clerk's office. (2) At a minimum, the ADR plan must: (a) designate an ADR clerk, who may be the clerk of the court, the court administrator, the assignment clerk, or some other person; (b) if the court refers cases to mediation under MCR 2.411, specify how the list of persons available to serve as mediators will be maintained and the system by which mediators will be assigned from the list under MCR 2.411(B)(3); (c) include provisions for disseminating information about the operation of the court's ADR program to litigants and the public; and (d) specify how access to ADR processes will be provided for indigent persons. If a party qualifies for waiver of filing fees under MCR 2.002 or the court determines on other grounds that the party is unable to pay the full cost of an ADR provider's services, and free or low-cost dispute resolution services are not available, the court shall not order that party to participate in an ADR process. (3) The plan may also provide for referral relationships with local dispute resolution centers, including those affiliated with the Community Dispute Resolution Program. (4) Courts in adjoining circuits or districts may jointly adopt and administer an ADR plan. Family Counselors are assigned to a judge via team assignment as shown on the Oakland FOC web site, so there is no ADR plan for domestic relations mediation, and the same “family counselor” is always selected for the same judge. http://www.oakgov.com/foc/division_committee/ All of the rules regarding mediation are then ignored, and participants should be very wary of mediator bias, given that the rules to ensure that mediator bias does not exist are ignored and the court has a financial conflict of interest that may encourage it to seek mediators which maximize Title IV-D funding, by, for example, discouraging parents who would otherwise agree on joint physical custody from making that arrangement, or leaking information obtained in mediation in a recommendation to the court to force the parents not to jointly share physical custody, if they have a personal bias against joint physical custody. What can a parent do? They can object to mediation under MCR 2.4.10 and request that the Chief Judge ensure that the ADR plan is both in place and properly followed: (E) Objections to ADR. Within 14 days after entry of an order referring a case to an ADR process, a party may move to set aside or modify the order. A timely motion must be decided before the case is submitted to the ADR process.( .... F) Supervision of ADR Plan. The chief judge shall exercise general supervision over the
implementation of this rule and shall review the operation of the court's ADR plan at least annually to assure compliance with this rule. In the event of noncompliance, the court shall take such action as is needed. This action may include recruiting persons to serve as ADR providers or changing the court's ADR plan. http://courtofappeals.mijud.net/rules/documents/1Chapter2CivilProcedure.pdf If someone has successfully done this at the Oakland County FOC, I am not aware of it. Another option is to offer up a mediator under MCR 2.4.11: (1) The parties may stipulate to the selection of a mediator. A mediator selected by agreement of the parties need not meet the qualifications set forth in subrule (F). The court must appoint a mediator stipulated to by the parties, provided the mediator is willing to serve within a period that would not interfere with the court's scheduling of the case for trial. http://courtofappeals.mijud.net/rules/documents/1Chapter2CivilProcedure.pdf In this case, I would offer a minister or other respected and neutral person to act as a mediator. I think that it's just straightforward to send a return receipt requested letter, keeping a certified copy, specifying the court rule to the other parent, and asking him/her to agree to one of a list of mediators. These would include ministers and other neutral and respected members of the community. Another option is to move to disqualify the mediator under MCR 2.4.11: (4) The rule for disqualification of a mediator is the same as that provided in MCR 2.003 for the disqualification of a judge. The mediator must promptly disclose any potential basis for disqualification. http://courtofappeals.mijud.net/rules/documents/1Chapter2CivilProcedure.pdf All of these rules should apply to family counselors when exercising their duties as mediators. Offering this mediation through family counselors, sometimes called “informal mediation”, and failing to tell people that its not required, is a coercive act on the part of the FOC. Most people assume that the court is not breaking the law and that the mediation they receive is conducted by a neutral party acting in accordance with law. Oakland County Friend of the Court should abandon the system whereby family counselors act informal mediators, because they don't meet the statutory requirement that the FOC offer mediation, as family counselors don't meet the requirements for mediators. For more on how mediators are failing Michigan's families, see the survey results here: Michigan Child Custody Survey Report http://www.scribd.com/doc/3123830/Michigan-Child-Custody-Survey-Report
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