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Doug Dante email@example.com Updated: August 28, 2009
I am not a lawyer and this is not legal advice. These are tough times in Michigan, and many parents are loosing good jobs, particularly in the automotive sector, and are they unable to find more work at the same pay rate. Some of these parents pay child support through the Michigan Friend of the Court, and they're having a hard time getting the FOC (Friend of the Court) and courts to adjust their child support obligation to reflect their new income. Sometimes, a FOC employee or judge will say that children who benefit from child support "should not suffer" because a parent looses a job. I feel that if he/she says this, he/she is not properly conducting his/her duties, and is not obeying the laws of the state of Michigan. It's not more money that's in the child's best interest, it's the correct application of the Michigan Child Support Formula Manual. As of Oct 1, 2008, the 2008 Michigan Child Support Formula Manual is used. http://www.courts.michigan.gov/scao/resources/publications/manuals/focb/ 2008MCSFmanual.pdf For use in reviewing previous orders, 2004 Michigan Child Support Formula Manual may be used. http://www.courts.michigan.gov/scao/resources/publications/manuals/focb/ 2004MCSFmanual.pdf
Conflicts of Interest
However, the court and FOC have a financial conflict of interest in ruling on these matters as they themselves make more money when they collect more dollars of child support. (This conflict of interest also extends to custody and parenting time matters). http://www.scribd.com/doc/630611/A-Quick-Summary-of-Title-IVD-Funding-and-Incentives This conflict of interest sometimes encourages the court or the FOC to view the paying parent as simply a source of income for the child, and not a vital part of the children's lives. However, long understood problems of children from homes without one parent may be helped when the child has consistent and close contact with both parents. http://www.scribd.com/doc/425877/The-Effects-of-Divorce-and-Sole-Custody-on-Children-
Problems from Incorrectly Calculated Support
If the child support burden is too low, the child's parent who receives child support may struggle to care adequately for his/her child. If the child support burden is to high, it may become difficult or impossible for the paying parent to sustain his/her relationship with his/her child. It's not in the child's interest that dad or mom loose his/her driver's license, that dad can't take a child fishing or hunting, or that mom doesn't have enough money to feed herself, much less show her child love. Nor is it in the child's best interest that unnecessary arrears mount, and prevent the paying parent from getting his/her parenting time enforced. The correct application of the formula is designed to protect from this. See: MCL 552.628 Order to suspend payer's occupational, driver's, or recreational or sporting license http://www.legislature.mi.gov/ mileg.aspx?page=getobject&objectName=mcl-552-629&relation=previous I don't have the court rulings handy, but I understand that it's customary for courts to refuse to hear parenting time complaints when parents are in arrears, although there's nothing about that in the Support and Parenting Time Enforcement Act (MCL 552.641) http://www.legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-552-641 The Support and Parenting Time Enforcement Act (MCL 522.605, Section 5, Paragraph 2 says: (2) Except as otherwise provided in this section, the court shall order child
support in an amount determined by application of the child support formula developed by the state friend of the court bureau as required in section 19 of the friend of the court act, MCL 552.519. The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following: http://www.legislature.mi.gov/ mileg.aspx?page=getobject&objectName=mcl-552-604&relation=next
Necessity of Child Support Modifications
It's not some magical one time application of the formula that's the correct action under the law, but rather the state is obliged, in the interests of the child and of justice, to modify support orders when circumstances dictate. MCL 522.615, Section 15 mandates change of circumstance notices: " The payer and any recipient of support shall immediately give to the office of the friend of the court notice of any change in circumstances which would affect an order of income withholding or the distribution of money received under that order." http://www.legislature.mi.gov/ mileg.aspx?page=getobject&objectname=mcl-552-615 The Friend of the Court Act mandates that the FOC review child support orders upon written request if they are due (MCL 522.517, Section 17): (1) After a final judgment containing a child support order has been entered in a friend of the court case, the office shall periodically review the order, as follows: ... (d) Upon receipt of a written request from either party. Within 14 days after receipt of the review request, the office shall determine whether the order is due for review. The office is not required to investigate more than 1 request received from a party each 36 months. http://www.legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-552-517 This isn't just an option, this is federally mandated!
These programs are paid for by our federal tax dollars, and the federal government requires the states to have expedited procedures to modify support orders. US Code TITLE 42 > CHAPTER 7 > SUBCHAPTER IV > Part D > § 666 says that states participating in the program, including Michigan, must have: “(2) Expedited administrative and judicial procedures (including the procedures specified in subsection (c) of this section) for establishing paternity and for establishing, modifying, and enforcing support obligations.” US CODE TITLE 42 > CHAPTER 7 > SUBCHAPTER IV > Part D > § 666 http://uscode.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000666---000-.html
The Minimum Threshold for Modification
When requesting a modification, the easiest thing for me to do might be to run the calculations myself, and in the written request for modification, provide an affidavit that states the new calculations, based on my best available information, exceed the minimum threshold for modification in section 4.04, and request that the FOC follow Section 4.04 of the 2008 MCSFM, which requires mandatory petition of the court: 4.04 Minimum Threshold for Modification 4.04(A) The "minimum threshold for modification" is 10-percent of the currently ordered support payment or $50 per month, whichever is greater. 4.04(B) Following a child support review by the friend of the court office, if the difference between the recommended amount and the current order exceeds the minimum threshold for modification, the friend of the court office must petition the court to modify the order. I believe that a FOC worker must generate two support recommendations, one with imputation, and one without, and present them to the court, but I can't find the reference now. More information on imputation is available below. However, the sad fact of the matter is that the Friend of the Courts and the Courts make $27 Million each year from Federal Incentive Funds, which are based on how many dollars in support they collect, and how much effort they expend collecting that money. Also, some local FOCs may be ordering parents to pay arrears payments via check or other method, and may be exceeding the 60-65% limits in the federal consumer credit protection Act.
Obtaining Forms to Request Modification
Obtaining forms for child support modification can occasionally be difficult. One might even suspect that some local FOC offices are intentionally making it as difficult as possible for parents to submit child support modification requests, hoping that those parents go into arrears while dealing with the bureaucracy, so that the offices themselves can profit by generating work for themselves as enforcers as well as interest like fines on arrears. Firstly, I would check on my local FOC's web site and download the appropriate forms. Unfortunately, sometimes the individual links aren't working correctly, so it may be helpful to download the entire archive of FOC forms. Sometimes, it may be useful to review the forms to see the different things that the court expects to do within its normal standard operating procedures. Packet of Revised Friend of the Court Forms http://courts.michigan.gov/SCAO/courtforms/revised_foc_forms.zip foc16.pmd : 21-DAY NOTICE TO ALLEGED VIOLATOR OF CUSTODY OR PARENTING TIME PROVISIONS FIXME: FOC 50: Motion Regarding Support http://courts.michigan.gov/scao/courtforms/domesticrelations/support/foc50.pdf Other forms: http://courts.michigan.gov/scao/courtforms/domesticrelations/drindex.htm
Please note that each office is required to have these forms available. MCL 552.505(1)(d), which reads in part: "(1) Each office of the friend of the court has the following duties: ... (d) To make available to an individual form motions, responses, and orders for requesting the court to modify the individual's child support, custody, or parenting time order, or for responding to a motion for such a modification, without assistance of legal counsel. The office shall make available instructions
on preparing and filing each of those forms and instructions on service of process and on scheduling a modification hearing." http://www.legislature.mi.gov/ mileg.aspx?page=getobject&objectname=mcl-552-505&query=on&highlight=forms
Getting Income Information Required for the Formula
Also, with regards to how much to request the child support should be, as required on the form, if I were you, I would consider doing the calculations with my best available data, using the 2008 Michigan Child Support Formula manual. I would then include those calculations attached to the form, and on the form write “$XXX.XX dollars per month, so long as the income of the other parent hasn't substantially changed from $YYY.YY per year.” That way, I know up front what I believe the law says is in the best interests of my children, and I'm prepared to handle other parties, such as the other parent or the FOC, who want to work in their own interests and against the children's interests. If I'm concerned that the other parent's income has changed significantly, I might consider sending the other parent a polite written request for his/her current annual income, so that I can run the calculations so that the child support may be set in accordance with the best interests of the child. I would probably volunteer to show the other parent all of the calculations before sending them to the FOC. Then, having run the calculations, I might offer to the other parent that we agree to the calculated amount so that I can enter it as an agreement using the FOC form, and reduce fighting and court costs. Note that this may be a consent agreement as described below, and may adversely effect future modifications, but I may believe that it will be worth it to avoid a battle. I might even agree to offer extra bonus money, even though it's not in the interests of the children, just to make the modification process run smoothly and quickly. A good lawyer knows how to write such agreements and make such deals. If I get no cooperation from the other parent, then I would note it in my attached documents, and I might ask the other parent in front of the FOC worker or referee to write down or state on the record “under penalty of perjury” what his/her income is, or I might consider various motions to obtain that information. While accurate income information is necessary for the correct application of the child support manual, I should still be able to get a modification based on the best available information I have on hand. Again, a good lawyer knows how to make the motions to obtain the necessary information. If I'm unable to complete the child support manual, then I could simply enter on the form, “whatever is in the best interests of my children, given proper application of the 2008 Michigan Child Support Manual, given that my annual income is $ZZZ.ZZ”. I could then ask the judge to instruct the FOC to investigate, get accurate income data from both parents, and run the formula. Note that, to me, a FOC worker is supposed to verify income, and not just take the parent's word
for it, although some have been known to only require documentation from the one parent only. This may encourage fraud, and I would likely object if the other parent doesn't produce documentation of income such as tax returns.
Applying the Child Support Formula
Please note that some parents have reported that the FOC may not always run the formula accurately. I could also hire a CPA (Certified Public Accountant) to read the formula and prepare a report showing different results, and given the detailed calculations of the FOC worker, I could ask the CPA to prepare a report indicating if and why such calculations are incorrect. Using either a CPA's calculations, or my own, I could then object to the results of the FOC workers calculations in front of the referee on the grounds that the FOC worker failed to follow the 2008 MCSFM. FOC workers often use software supplied to them by the SCAO. Past versions of the software seem to have been inaccurate, and may have consistently calculated support obligations which are too high. http://www.scribd.com/doc/962203/Should-Software-for-Child-Support-Calculations-beTreated-As-Unreliable Also, some parents accuse FOC workers of gaming the application of the formula, to maximize the child support obligation, which maximizes the federal incentive funds to their employer. More below.
Spreadsheet For Calculating Child Support Available
I've written a spreadsheet for the manual, which is free to FRC members. FRC is free to join. Join at: http://groups.yahoo.com/group/FRC/ After joining, download the spreadsheet from: http://groups.yahoo.com/group/FRC/files/ The file name is “2008MichiganChildSupportCalculator.ods” It requires OpenOffice.org which is also free. It can be downloaded from:
http://www.openoffice.org/ My spreadsheet does not currently include net income calculation (Section 1), but it does provide detailed calculations for the other sections of the 2008 MCSFM, specifically referencing the manual section for each step and giving detailed results. For information purposes only. I make no warranty, expressed or implied. Use at your own risk.
Limitations on Orders, Financial Incentives, and Possible Illegal Activity
Under the Federal Deficit Reduction Act of 2005, all money collected for most children must generally be given to the children first, excluding federal and repayment of state assistance to the family, and the child support collection agency (FOC) is never given priority over receiving money from the family. That is, if the family is due any money, it gets its money now, not the FOC, excluding certain federally required minor monthly and yearly fees. TITLE 42 > CHAPTER 7 > SUBCHAPTER IV > Part D > § 657. Distribution of collected support (a) In general Subject to subsections (d) and (e) of this section, an amount collected on behalf of a family as support by a State pursuant to a plan approved under this part shall be distributed as follows: ..... (3) Families that never received assistance In the case of any other family, the State shall distribute the amount so collected to the family. .... http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000657---000-.html This includes both arrears as well as child support. To ensure that the law is obeyed, the federal government required all child support and arrears to go through each state's central disbursement unit. (MiSDU)
Also, under federal law, orders, processes, and garnishments for child support and arrears must be restricted to no more than 60%-65% of net income of the obliged parents. This includes all garnishments, orders to pay via check, orders to pay medical insurance premiums via an employer, and all other orders, processes, and garnishments: TITLE 15 > CHAPTER 41 > SUBCHAPTER II > § 1673. Restriction on garnishment (a) Maximum allowable garnishment Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed ... (b) Exceptions ... (2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed— (A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual’s disposable earnings for that week; and (B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week; except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek. (c) Execution or enforcement of garnishment order or process prohibited No court of the United States or any State, and no State (or officer or agency thereof), may make, execute, or enforce any order or process in violation of this section. http://uscode.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00001673---000-.html Michigan explicitly recognizes these limits: 552.608 Limitation on amount of income withheld. Sec. 8.
The total amount of income withheld under this act under all orders to withhold income for current support, past due support, fees, and health care coverage premiums effective against a payer shall not exceed the maximum amount permitted under section 303(b) of title III of the consumer credit protection act, Public Law 90-321, 15 U.S.C. 1673. http://www.legislature.mi.gov/ mileg.aspx?page=getObject&objectName=mcl-552-608 However, please review the 2008 MCSFM and the 2008 MCSFM Supplement. It is very easy to exceed these limits, particularly for low income parents, with just the support payment and standard medical care. If the children have day care needs, then the limits can be exceeded for many middle income parents. There is no provision in the 2008 MCSFM limiting the obligation under MCL 552.608 or US Code, Chapter 41, § 1673. Personally, I believe that the Michigan and federal laws above mandate such a limit. As reported on the Yahoo! FRC group and elsewhere, some local FOC offices, including Macomb County, reportedly sometimes order 65% of net income garnished, and they then order obligated parents to pay an additional 15% of their income directly to the Macomb County FOC for arrears. While this, to me, plainly violates the applicable laws above, it also may violate federal law which mandates that all payments go through the state central disbursement unit (MiSDU) and federal law which mandates automated collections to the extent possible. One possible motivation that local FOC offices may have to make these questionable orders is to secure this payment of 15% of the parent's net income outside of the MiSDU. That is, if the MiSDU were to have access to these payments, they would likely follow federal law and send the payments to the children. Outside the MiSDU, the local FOC would have the ability to disburse the money in a manner which violates federal law, including paying itself interest like fines on arrears first, and not distributing that money to the children. In short, I'm deeply concerned that local FOCs who make these orders are stealing from the children they are supposed to serve. See: 552.603a Support payment; surcharge; computation; assessment; collection; enforcement. http://www.legislature.mi.gov/ mileg.aspx?page=getObject&objectName=mcl-552-603a Furthermore, these orders of 80% of net income, or even more when including health care insurance premiums ordered to be removed from parents wages, are so excessive that it is unlikely that the parents can actually meet these court orders and survive. In other words, these
orders create deadbeats, and this creates work for the FOC. This work can then be billed back to the federal and state governments via the Title IV-D program. In a sense, if these excessive orders do exist, they inevitably create false billing of taxpayer dollars to execute enforcement actions that would never have been needed if the limits were respected. In short, I'm deeply concerned that this is a backhanded way to steal taxpayer money which should never have gone to these local FOC offices in the first place. Also, note that by executing these procedures, courts, which share a budget with the local FOC, have a significant financial incentive to create arrears, impute income, and deny modification requests, potentially making FOC evaluators, judges and referees less than fair in this matter ( Source: CSPR report) http://courts.michigan.gov/scao/services/focb/CSPR12-06ReportAndRecommendations.pdf
Common Techniques To Increase Payments Which May Amount To Fraud
There are several common techniques which generally increase child support payments, which is in the financial interests of the FOC and the court, some of which may amount to fraud on the paying parent and the children (whose best interests are defined as the proper application of the formula). Firstly, FOC workers will sometimes substitute a software application for the actual MCS Manual. This software application has been show to consistently give obligations substantially larger than those specified in the manual. See also: Should Software for Child Support Calculations Be Treated As Unreliable? http://www.scribd.com/doc/962203/Should-Software-for-Child-Support-Calculations-beTreated-As-Unreliable Secondly, FOC workers or the payee parent or both working together will sometimes lie about the payee parent's income. Some parents have complained that the FOC worker in their case indicated that the other parent lost his/her job 6 months ago, and if the paying parent objected, the FOC worker would say something such as, “Why are you being so distrustful?” If this were me, I might explain that I'm concerned about a possible falsehood, given the FOC worker's financial conflicts of interest in this case, and request documentation that this is true. If pressed, I might offer that if both the FOC worker and the other parent write and sign a document in their own handwriting indicating that this is true under penalty of perjury and give it to me on the spot, and in this document agree to pay all legal costs of my recovery if they are lying, then I would accept their statements as true. If they won't write down what they have said verbally, I would suspect that it's a lie. I would then object to any support recommendation in
court, and possibly write a grievance against the FOC worker. Also note that as far as I know, FOC workers, with the exception of when they are making a custody recommendation, are only covered under normal governmental immunity, and may be sued for intentional torts such as fraud. Another technique that might be used is the FOC worker assigns the paying parent the requirement to pay health care insurance premiums for the children, but neglects to deduct the recipient parent's portion of that support payment (based on his/her part of total family income) from the garnishment order, harming the best interests of the children, which are to follow the manual. However, again, this act is in the financial best interests of the FOC. A classic technique, often deployed against military fathers, is for the custodial parent to demand cash payments outside of the Friend of the Court system. After several years, the custodial parent will then apply to the court for help in getting support for his/her children, and fraudulently state that the parent who is away has never paid anything in support. In this way, the caring parent essentially can double his her obligation during the cash only period, as it will be assigned as arrears. The FOC may suspect this fraud, but because it means that they will be able to charge significant interest-like fines on those arrears and collect more money, which means more incentive payments, they may turn a blind eye to it, or the FOC might even sometimes encourage or participate in such illegal activities.
Possible Evidence of Ongoing Fraud in Child Support Calculations
In a February 21, 2009 message to the FRC mailing list, a member, who will not be named here, indicated that his/her lawyer questioned a child support specialist for a Michigan County under oath, and briefly summarized his/her testimony for the members of the FRC list. (Archives are available to list members). http://groups.yahoo.com/group/FRC/ This FRC member indicated that the child support specialist only used the software application provided to him/her, and never reviewed the results of calculations using the 2008 Michigan Child Support Formula Manual. Many parents have expressed concern that the software may be incorrectly calculating support. It is possible that the support specialist may believe that the software is incorrect too. How many times has the specialist been asked by someone who's run the calculations by hand to correct the errors from the software? How many times has the specialist demurred, made excuses, or looked the other way? At some point, if the software is incorrect, and if the specialist is ignorant that he/she breaking the law, it's only because he/she is willfully ignorant of the errors in the software. If the software is incorrect, and the specialist knows it, his/her "ignorance" is the thinnest veil of a lie hiding his/her intentional deception of parents, and his/her act of calculating
support while knowing that it is not in the best interests of the children that he/she is being paid to serve. Unfortunately, this could amount to fraud. The FRC member also indicated that the specialist also used the amounts, such as income and parenting time, from figures provided to him/her by the court regardless of whether they were right or wrong. This raises the concern that this support specialist was knowingly computing support obligations using bogus income, and thus generating a bogus support amount. Support specialists often encourage parents to sign consent agreements to obtain voluntary compliance on child support orders. In some cases, parents have suggested on the FRC list and elsewhere that a support specialist or other FOC worker has strongly encouraged or even attempted to coerce the paying parent into signing orders, saying that he/she must sign it, or even threatening to modify custody recommendations if the parent does not sign the voluntary agreement. When this specialist makes a support computation based on data that he/she knows is false, does he she explain this to the parent? Does he/she explain t what the figures would be using real data? Does he/she avoid high pressure techniques to gain voluntary agreements for support amounts that he/she knows are based on bogus inputs and not in the best interests of the children? Given these practices of the specialist who may be knowingly computing support using wrong inputs, we might be concerned that the technique of plausible deniability may be employed here. Upon failing to obtain an agreement, the specialist might send his/her computations to the court, where the judge, having created an environment where such behavior is encouraged without his/ her actual knowledge of the details, rules that the specialist has followed the law and demands support payments based on the bogus inputs. In the unfortunate and unlikely event that this were to occur intentionally, then those actions could include conspiracy against rights, fraud, perjury, or subornation of perjury. http://en.wikipedia.org/wiki/Plausible_deniability The FRC member also briefly indicated that the support specialist also gave significant testimony that the FOC is manipulating computation of support to maximize transfer payments when those payments are not otherwise in the best interests of children based on the accurate computation of the support in the support formula manual. While we aren't given details, this, to me, is the most troubling statement in the message that I read. To me, it sounds like the lawyer elicited testimony from the support specialist that he/she intentionally used various techniques which she may apply to deceive parents, knowingly acting against the best interests of children, to increase support orders when those orders are not in the best interests of the children who are to be served.
Considerations Regarding Consent Orders
If I'm concerned at all that the calculations are not 100% correct, or if I'm concerned that I might later lose my job or other source of income, one thing I would be unlikely to do is to sign a consent order. As far as I understand, signing this is 100% optional and doesn't provide the paying parent with any significant benefits. The consent order may be used to “lock in” payments which may be calculated in an unlawful manner is to get both parents to sign a consent order with a specific dollar amount. Then these parents can't later object based on the fact that the MCSFM wasn't followed, because they've consented to pay more for the good of the children. This can also be used to later deny modification requests when parents lose a job, because the parent has consented to a specific dollar amount. As far as I understand, signing a consent order is an optional act, and is in essence, an agreement to depart from the guidelines: Domestic Relations - Child Support - Friend of the Court Guidelines - Departure - Agreement The SPTEA does not prohibit a court from entering a child support order which is agreed to by the parties and which deviates from the child support formula, if the requirements for deviation from the formula are met. http://coa.courts.mi.gov/Digest/DigestDetail?mode=view&digestId=69595 If I don't want to do this, then one possible thing I might do is to say something like, “I decline to convert this court order into a consent order, so that I may retain future rights to act in the best interests of my children and modify this obligation as circumstances dictate, or if I later discover that I and my children were victims of fraud, I can act in their best interests to modify the order as circumstances dictate.” Sometimes, parents have complained that FOC workers and others have chastised parents for not signing consent orders, asking them “Don't you want to support your children?” Given this sort of emotional blackmail, I might respond, “I believe that this consent order is created by the court to protect the financial interests of the court, and I believe that by reserving my rights to the greatest extent possible is in my children's best interest.” or also “I am aware that the FOC has various financial conflicts of interest with regards to the Title IV-D program, and I want to reserve my rights to protect my children and myself”, or similar things.
If told that I must sign off the record, again, I would demand that the FOC worker write this down and sign the statement, indicating something like, “I assert the following is true under penalty of perjury...” blah blah blah. Personally, I might not sign even given the written statement. The FOC worker could simply be mistaken, but if the worker refuses to write down his/her statement, to me, it kind of ends his or her credibility to assert what the law says or does not say immediately.
With competent legal help, I would discuss getting a retroactive modification of support. This is very difficult to achieve, but may be possible. Once the child support obligation has been set, it can't be retroactively modified. However, there is an exception in the law for deception. If the other parent lied about his/her income, then retroactive modifications are allowed. "If an individual who is required by the court to report his or her income to the court or the office of the friend of the court knowingly and intentionally fails to report, refuses to report, or knowingly misrepresents that income, after notice and an opportunity for a hearing, the court may retroactively correct the amount of support." MCL 552.603b http://www.legislature.mi.gov/ mileg.aspx?page=getObject&objectName=mcl-552-603b Secondly, if the child support was calculated incorrectly, then the court should retroactively fix its mistake so that it doesn't harm the best interests of children. Michigan's court of appeals said: "Under the Support and Parenting Time Enforcement Act, a court must order support in an amount determined by application of the child support formula developed by the state Friend of the Court bureau as required by the Friend of the Court Act, but the court may enter an order which deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate." Gehrke V Gehrke http://courtofappeals.mijud.net/Digest/ DigestDetail?digestId=49755&mode=view#306975
If the court used a software application, then that software application probably didn't compute the obligation correctly: http://www.scribd.com/doc/962203/Should-Software-for-Child-Support-Calculations-beTreated-As-Unreliable The parenting time abatement in the child support computations must be computed by correctly determining the number of nights the children spend with their mother and father. (See both the 2008 and 2004 Michigan Child Support Formula Manual). If the obligation is computed using other information, such as a judicial ruling that has no effect on the children's home in practice, then I believe it's incorrect, and not consistent with appellate decisions.
Imputation of Income
If my income from the obligation was imputed, then I might argue that my obligation had been inflated by automatic imputation, and the FOC and court failed to follow the guidelines for imputation in Berger V Berger: "In calculating child support under the child support formula, a court had the discretion to impute income to a parent, usually when there is a voluntary reduction of income or a voluntary unexercised ability to earn. In determining whether to impute income, a court should consider: (1) prior employment experience, (2) education level, (3) physical and mental disabilities, (4) the presence of the parties' children in the person's home and its impact on earnings, (5) the availability of employment in the local area, (6) the prevailing wage rates in the local area, (7) special skills and training, and (8) whether there is any evidence that the person is able to earn the imputed income. In this case, in calculating child support, the trial court apparently calculated support under the child support formula based on the plaintiff's current income, which was based on part-time employment, while in assessing the plaintiff's ability to care for her children in granting custody, the court had accorded to the plaintiff her earning capacity based on fulltime employment. Further, the court had found that the plaintiff's occupations in nursing and dance afforded her a flexibility in employment schedule which permitted both employment and child custody. The court had apparently imposed the entire financial obligation of child support on the defendant. Under the circumstances, the trial court improperly failed to impute to the plaintiff income from fulltime employment in calculating child support" Berger V Berger
http://courtofappeals.mijud.net/Digest/DigestDetail?digestId=67285&mode=view#436175 Given reasons why the obligation wasn't computed correctly, I might request that the court recompute my obligation, nunc pro tunc, or "now for then" using the correct application of law, which is defined as being in the children's best interests. http://en.wikipedia.org/wiki/Nunc_pro_tunc
Historical Use of Automatic Imputation
FOC's internal "2008 Changes to the Michigan Child Support Formula" says that they have abandoned "automatic imputation". Potential Income Criteria ensure that imputation is based on actual ability and likelihood of earning Any other rule based on pure speculation and violates requirement to base support on actual resources of the parent. 2008 Changes to Michigan’s Child Support Formula 16 Potential Income - cont'd Basing Income on a parent’s actual ability and likelihood of earning Shift in Thinking Automatic Assumption v Actual Ability “Just the Factors please” Just Factors, please Recording Info [MCL 552.517b(6)(a)] 2008 Changes to Michigan’s Child Support Formula http://courts.michigan.gov/mji/webcast/2007-08/032508/ 2008_Changes_to_Michigans_Child_Support_Formula_presentation.pdf Yes, FOC can and will impute based on "actual ability and likelihood of earning" (see relevant case law at link below if you like).
However, the training statement above implies above that some parties within the FOC until October 1, 2008 of automatic assumption. The relevant, to me, parts of the law referenced above are, from MCL 552.517(b): (6) The following provisions apply to support review proceedings under this section: (a) A recommendation under subsection (3) shall state the calculations upon which the support amount is based. If the friend of the court office recommends a support amount based on imputed income, the recommendation shall also state the amount that would have been recommended based on the actual income of the parties if the actual income of the parties is known. If income is imputed, the recommendation shall recite all factual assumptions upon which the imputed income is based. (b) The friend of the court office may impute income to a party who fails or refuses to provide information requested under subsection (2)." http://legislature.mi.gov/ mileg.aspx?page=getObject&objectName=mcl-552-517b The law requires the use of "factual assumptions". I don't know what the changes in the law are, but the last change was in 2005. Although I don't have the old versions handy, in all likelihood, this section of the law always required "factual assumptions" since imputation was introduced. Yet, the FOC training implies that some people used "automatic assumptions", until October 1, 2008. and that there had previously existed "Any other rule based on pure speculation", including an "automatic assumption" rule. To me, Berger V Berger establishes the precedent and the factors for imputation. But look, these rulings regarding imputation go all the way back to 1998. Ghidotti V Barber Domestic Relations - Child Support - Friend of the Court Guidelines - Parental Income - Ability to Earn - Determination The child support formula developed by the Friend of the Court is required to be based on the needs of the child and the actual resources of each parent. To include a parent's unexercised ability to earn an income as an actual resource, a court must determine that the parent has the actual ability and likelihood of earning income. In doing so, it must consider factors such as the parent's employment history, education and skills, available work opportunities, diligence in trying to find work, personal history, assets, health and physical abilities, and availability for work, the presence of children in the parent's home and its impact on the parties' earnings, and prevailing wage rates.
http://coa.courts.mi.gov/Digest/ DigestDetail?digestId=58195&mode=view#365695 The FOC, in the document above, appears to be admitting that some within its ranks may have been violating a Michigan Supreme Court ruling for 10 years!
State of the Economy and Imputation of Income
The guidelines for imputation in Berger V Berger include evaluations of the economic conditions. "... (5) the availability of employment in the local area, (6) the prevailing wage rates in the local area..." Berger V Berger http://courtofappeals.mijud.net/Digest/DigestDetail?digestId=67285&mode=view#436175 I might find it helpful to discuss with my lawyer presenting evidence regarding the local economic conditions. Evidence may news accounts or other information on the state of the economy, including:
Bureau of Labor Statistics Local Area Unemployment 12.9% for Michigan April 2009 http://www.bls.gov/lau/ Bureau of Labor Statistics Historical Data http://data.bls.gov/PDQ/servlet/ SurveyOutputServlet?data_tool=latest_numbers&series_id=LASST26000003 Detroit Free Press Economist: Jobless rate among African Americans to hit 27.8% By JOHN GALLAGHER • FREE PRESS BUSINESS WRITER • May 27, 2009 http://freep.com/article/20090527/BUSINESS06/90527031/ Economist++Jobless+rate+among+African+Americans+to+hit+27.8
Considerations Regarding Debtors Prison
Some parents have claimed that they've been sent to jail as a form of illegal debtor's prison. The ACLU (American Civil Liberties Union) of Michigan recently took up the case of a woman whom they argued was in this sort of situation and reportedly won her release. They also reportedly performed a similar legal service for a man in a similar situation. The ACLU legal brief is here: http://www.aclumich.org/sites/default/files/file/nowlinmotion.pdf If I were in this sort of situation, and I could not otherwise afford a lawyer, I would consider contacting the Michigan ACLU to see if they could assist. http://www.aclumich.org/
Considerations for Child Support and SSDI (Social Security Disability Income)
There is a link to it on their story page, which is linked to below. With regards to SSDI, the Betters V Betters case may interest you. If I were a recipient of SSDI and I were ordered to pay child support, I would read it and discuss it with my lawyer. In particular: " Further, 42 USC 407(a) provides that “none of the moneys paid or payable . . . under [subchapter II] shall be subject to execution, levy, attachment, garnishment, or other legal process . . . .”42 USC 1383(d)(1) extends 407(a)’s protection to SSI benefits. See Becker Co Human Services v Peppel, 493 NW2d 573, 575 (Minn App, 1992). 42 USC 407(a) and 1383(d)(1), and the child support manual, as they must be read together, prohibit the imputation of income to a parent receiving means tested income unless the trial court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record the following: (a) The support amount determined by application of the child support
formula. (b) How the support order deviates from the child support formula. (c) The value of property or other support awarded instead of payment of child support, if applicable. (d) The reasons why application of the child support formula would be unjust or inappropriate in the case. [Ghidotti, supra at 196, quoting MCL 722.717(3); MSA 25.497(3).]" http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/ 20000211_C211529(0038)_211529.OPN.PDF This seems to me to set a sort of child support level to be taken out of SSDI at $20 a week on a person who is conscious and capable of caring for his children under SSDI, on the assumption that he can find some income during that week, even at less than minimum wage.
Considerations for Fathers Who Claim that the FOC Refuses to Enforce Mom's Support Obligations Due to Gender Bias
A father contacted a mailing list that I'm on and claimed that the local FOC in his county was refusing to enforce mom's obligation to support her children due to their own gender bias. In this case, the dad claimed that mom brazenly refused to support her children, and that the FOC refused for years to enforce her obligation in any meaningful manner. If I were in such a position, I would be concerned that my children and I are victims of gender discrimination by the local FOC, courts. I would seek the advice of a lawyer if at all possible. Regarding the FOC, there is a statutory grievance procedure that I would consider using with the assistance of my lawyer. (MCL 552.526) http://legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-552-526 I would discuss with my lawyer the possibility of filing a grievance with the FOC, complaining of zero child support enforcement effort against mom, and alleging gender discrimination if I believed it to be true. I might file it by return receipt requested mail. If, after 30 days, I receive no response, or an unsatisfactory response, I might file an appeal of the grievance with the Chief Judge of county based on MCL 552.526 above and including my original complaints. I might also contact my Michigan Representative or Senator and ask them to assist my children and I in getting the support that we deserve.
http://legislature.mi.gov/ Also, if the FOC seemed unwilling to seek criminal charges when I felt that they would have been brought otherwise, due to gender discrimination, I might contact the PA and respectfully request my rights as a crime victim (parent who is due support but not receiving any) under the ELLIOT LARSON CIVIL RIGHTS ACT. (MCL 37.2102) http://legislature.mi.gov//mileg.aspx?page=getObject&objectName=mcl-37-2102
Later Modification If I Had Signed A Consent Agreement
If I had signed an agreement to pay support, then the judge may refuse my arguments on the grounds that such an agreement makes later modification impossible. If this is a hardship on me and on the children when they're in my care, or if the obligation makes it difficult or impossible for me to care for my children, through my lawyer I may argue that such an agreement is illegal in Michigan, because: "A biological parent has an inherent obligation to support his child, and he must support his minor child unless a court of competent jurisdiction modifies or terminates the obligation or the child is emancipated. " Macomb County Department of Social Services v Westerman http://courtofappeals.mijud.net/Digest/ DigestDetail?digestId=40555&mode=view#216305 By not properly computing the obligation using the 2004 MCSFM, and by collecting support for time when the other parent is not caring for the kids, the court is allowing the other parent to get away from his/her inherent obligation to support his/her children, in violation of court of appeals rulings such as Macomb County Department of Social Services v Westerman. Also: "The purpose of child support is to provide for the needs of a child. The parents of a child are not permitted to bargain away a child's right to receive adequate support ... " Macomb County Department of Social Services v Westerman http://courtofappeals.mijud.net/Digest/ DigestDetail?digestId=40555&mode=view#216305
If I'm unable to both care for my children when they're with me in an appropriate manner without hardship, and pay the agreed amount, then the children are not getting adequate support from the other parent in the form of a properly computed support obligation. Even if I had made an agreement to pay such support, such an agreement is not permitted because it does not provide for the needs of the children when they're in my care as the court of appeals said in Macomb County Department of Social Services v Westerman. Also, if I felt it to be true, I would probably state that I felt that I been deceived, either by the improper use of software which replaced the formula, false information used to calculate the obligation, or false statements that I was required to sign various paperwork, and not being adequately informed by the court that such an agreement could subsequently harm the best interests of my children by preventing me from seeking adequate support from their other parent, or I was accepting legal advice from a court worker with a financial conflict of interest encouraging larger support awards, even if that harmed my children, then would argue that an agreement based on deception from an officer of the court that is plainly not in the best interests of children cannot be enforced and should be voided. Through my lawyer, I might also argue that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Troxel V Granville http://www.law.cornell.edu/supct/html/99-138.ZO.html I might argue that by allowing this tangled web of lies to continue, and not recognizing the duty of the court to properly compute the support obligation and arrears based on the actual custodial environment of the children, our actual income, appropriate use of imputation, and the actual Michigan Child Support Formula Manual, and not software known to be incorrect, that the court may be violating my right to the care and custody of my children. Also, I might argue that incorrectly computed support obligations could result in my being sent to jail in a contempt hearing or in a felony criminal conviction for non-support, and sending me to jail, on the grounds that I loved, fed, clothed, and supported my children, rather than sending sufficient money to the other parent, simply because of some paperwork based on false information, or because it's in the best interests of the court, and not in the best interests of my children, is a violation of my rights to the care and custody of my children. Also, if the obligation is not computed correct, and especially if the child is residing with the socalled non-custodial parent, rather than the so-called custodial parent, or the child's periods of custody are substantially different from those used to compute the child support order, then the child support recipient parent is spending child support money on himself/herself and not the
children. The Child Support and Parenting Time Enforcement Act grants to the court: "AN ACT to provide for and to supplement statutes that provide for the provisions and enforcement of support, health care, and parenting time orders with respect to divorce, separate maintenance, paternity, child custody and support, and spousal support; to prescribe and authorize certain provisions of those orders; to prescribe the powers and duties of the circuit court and friend of the court; ... " http://www.legislature.mi.gov/mileg.aspx?page=getobject&objectname=mcl-act-295-of-1982 In this instance, I might argue politely that court may be conspiring with a de facto non-custodial parent to misuse the powers given it under the act to steal from children and the de-facto custodial parent. More here: http://www.scribd.com/doc/1018457/Considerations-for-when-a-Parent-Spends-Child-Supporton-HimselfHerself-and-the-Court-Doesnt-Care To take a parent's money for “child support” when he/she is in fact supporting the children directly is a violation of the de-facto custodial parent's fundamental liberty interest to the care and custody of his/her children. In other words, I feel that even if the law were to be interpreted by the court to mean that a def-facto custodial parent must pay a de-facto non-custodial parent child support, which did not benefit his/her children, but rather went into the pocketbook of the de-facto non-custodial parent, such an interpretation would be a plain violation of the rights of that parent to the care and custody of his/her children as well as his/her fourteenth amendment due process rights to the care and custody of his/her children (Troxel V Granville) By conspiring with the de-facto non-custodial parent to steal from the de-facto custodial parent and the children, the court is preventing the de-facto custodial parent from caring for his children, and violating his right to prepare his children for future obligations. See also: http://www.scribd.com/doc/404652/Fiction-John-Q-Public-and-the-Friend-of-the-Court-BeforeIt-Begins The Friend of the Court has a duty to investigate all relevant facts if ordered by the court: "(g) To investigate all relevant facts, and to make a written report and recommendation to the parties and to the court regarding child custody or parenting time, or both, if there is a dispute as to child custody or parenting time,
or both, and domestic relations mediation is refused by either party or is unsuccessful, or if ordered to do so by the court." From MCL 552.505 http://www.legislature.mi.gov/ mileg.aspx?page=getobject&objectname=mcl-552-505&query=on&highlight=investigate If the court refuses to make a reasonable order to investigate an apparent violation of a parent's rights, I think that it's clear legal error that could be overturned on appeal. If the court made such an order, and the FOC failed to correctly verify the actual living conditions of the children, then the FOC has failed in its duties, and I still think it's clear legal error, because they're nothing more than an arm of the court. It is possible, sadly, that a local court and/or FOC may fail to conduct a reasonable investigation, determine the facts, and act in the best interests of the children, because they're engaged in racketeering. Unfortunately, there is some evidence of racketeering in Michigan's Friend of the Court.
Unenforceable Consent Agreements
If I believed it to be true, when the issue of a previously signed consent agreement arises, I might, through my lawyer, focus on the arguments that there was "fraud", "mistake", or "unconscionable advantage" when the consent agreement was signed. This would make the agreement unenforceable. I might point to Berger V Berger: "Domestic Relations - Child Support - Friend of the Court Guidelines - Income Imputed "In calculating child support under the child support formula, a court had the discretion to impute income to a parent, usually when there is a voluntary reduction of income or a voluntary unexercised ability to earn. In determining whether to impute income, a court should consider: (1) prior employment experience, (2) education level, (3) physical and mental disabilities, (4) the presence of the parties' children in the person's home and its impact on earnings, (5) the availability of employment in the local area, (6) the prevailing wage rates in the local area, (7) special skills and training, and (8) whether there is any evidence that the person is able to earn the imputed income. In this case, in calculating child support, the trial court apparently calculated support under the child support formula based on the plaintiff's current income, which was based on part-time employment, while in assessing the plaintiff's ability to care for her
children in granting custody, the court had accorded to the plaintiff her earning capacity based on fulltime employment. Further, the court had found that the plaintiff's occupations in nursing and dance afforded her a flexibility in employment schedule which permitted both employment and child custody. The court had apparently imposed the entire financial obligation of child support on the defendant. Under the circumstances, the trial court improperly failed to impute to the plaintiff income from fulltime employment in calculating child support." http://courtofappeals.mijud.net/Digest/ DigestDetail?digestId=67285&mode=view#436175 If I believe it to be true, I might argue that the imputation was fraudulent. That is, the officer of the court intentionally fraudulently presented his/her decision to impute to me as a lawful one, and that he/she had the ability to do so, or that no judge would review the action, etc. Also in Laffin V Laffin: "A court must order child support in an amount determined by application of the child support formula developed by the state Friend of the Court bureau. A court may deviate from the formula if it determines from the facts of the case that application of the child support formula would be unjust or inappropriate, and articulates on the record its reasons for the departure." http://courtofappeals.mijud.net/Digest/ DigestDetail?mode=view&digestId=69065 I might argue that the court secretly substituted a software application for the Michigan Child Support Formula Manual, probably the Margin Soft software, about which Michigan Courts online site says: “This application is being provided as a service and is not supported by SCAO staff.” http://courts.mi.gov/scao/services/focb/mcsf.htm If I felt it were true, I might argue that The officer of the court instead deviated by refusing to impute my real income to apply it, or by using software known to be incorrect. If I felt that I had been coerced to sign, such as being ordered by a judge or officer of the court, and it had not been explained to me that my signature was optional, and of my own free will, I might argue that I had been coerced. This coercion was either intentional fraud on the part of an officer of the court, an innocent mistake by an officer of the court, or an application of
unconscionable advantage by an officer of the court and therefore the consent agreement should be considered invalid. If my lawyer tried those arguments and they failed, then I might ague that the agreement is still unenforceable if it violates public policy. I might argue that my obligation violates public policy, because imputation was done incorrectly, and because the agreement effectively forces me to relinquish my rights to have the other parent properly support the children during his/her periods of custody. Laffin v Laffin "The parties in a divorce may not relinquish their child's right to support" http://courtofappeals.mijud.net/Digest/DigestDetail?mode=view&digestId=69065 And further: Laffin v Laffin "Contracts which violate public policy may not be enforced. In this case, the trial court's orders ensuing from the 2004 exhaustion of the equity debt improperly enforced a contract which was void as against public policy, and therefore remand for a determination of the plaintiff's appropriate child support obligation was necessary." http://courtofappeals.mijud.net/Digest/ DigestDetail?mode=view&digestId=69065 I might argue that because the children aren't getting the support they need from the other parent in the form of a correctly computed obligation, and because they're being deprived of my care should I be jailed or have my license revoked, etc, for an obligation that I can't possibly pay, this consent agreement, even if it were valid, plainly violates the public policy that child support is for the benefit of the children. I might argue through my lawyer that the court can't enforce a consent agreement whose purpose is to harm the children by depriving them of their other parent's support for their needs and the direct love and care of their myself by taking me from them and throwing me in jail or preventing me from picking them up or dropping them off, or preventing me from fishing with them, by seizing my licenses. Here the court is insisting that I, as a parent, must "relinquish my child's right" to the other parent's support of the children when their in his/her care and custody, by incorrectly imputing income and forcing a consent agreement based on the false imputation, if applicable.
Considerations When Facing Unreasonable Delays to Modify Support Obligations
Sometimes, a parent will contact the FOC and request that the payment be modified to fit the best interests of the children. Unfortunately, I've heard of at least one person who claimed that the FOC simply sat on his/her request and introduced significant delays with the other parent complained about the modification that he/she requested. This parent indicated that, the FOC accepted an objection from the other parent but didn't forward that objection to the requesting parent. If I were in that situation, I would discuss with my lawyer the possibility of immediately demanding a copy. I would discuss with my lawyer requesting the objection by pointing out to them that the objection of the other parent is de-facto secret evidence, and that such secret evidence violates my fourteenth amendment due process rights. To me, this matter of changing the child support to act in the best interests of the children plainly effects my income, which is my property under the fourteenth amendment, as well as my due process rights to the care and custody of my children, also protected under the fourteenth amendment ( Troxel V Granville ), as I need sufficient income to care for them when it's my turn to have parenting time. If I felt it to be reasonable, I might also point out to FOC that their purpose is to make a recommendation to the court as to the proper application of the support formula, not to adjudicate disputes between the parties. I would point out that deviations from the formula are matters for the court to decide, on the record, and the original calculations, the deviations, and the reasons for deviation must all be provided. If the FOC believes that deviation is appropriate, it should first follow the formula to get the correct figure, create a figure which deviates, and provide the court with reasons it thinks the deviation is appropriate. In any case, the matter is a judicial one. FOC helps the court decide by presenting information. It is not the role of the FOC under law to make make secret decisions off the record to deviate from the application of the formula. MCL 552.605, Section 5, Paragraph 2: (2) Except as otherwise provided in this section, the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau as required in section 19 of the friend of the court act, MCL 552.519. The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following: (a) The child support amount determined by application of the child support formula. (b) How the child support order deviates from the child support formula.
(c) The value of property or other support awarded instead of the payment of child support, if applicable. (d) The reasons why application of the child support formula would be unjust or inappropriate in the case. http://www.legislature.mi.gov/mileg.aspx?page=getobject&objectname=mcl-act-294-of-198 In this case, the parent was being garnished at 83% of his/her gross income, far in excess of the limit of 65% of net income as I understand it. If I were in such a position, I might discuss with my lawyer filing a grievance with the FOC if they didn't act on my request promptly. In the grievance, I might point out that the FOC may be aware that I'm suffering and have no net income, and they may be trying to break me by starving me out and forcing me to accept under the table work,. so that they can criminalize me. This will inevitably destroy my relationship with my children, of which they're aware, and to me, this is intentional infliction of emotional distress. I might mention that MCL 691.1407 does not provide government workers immunity from intentional torts, such as IIED. http://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress
Considerations for Orders with Multiple Children (and Multiple Counties)
Someone wrote on an online list of which I'm a member that he/she had several children and the cases for these children were in two counties. Furthermore, he/she felt that those counties weren't adequately communicating and taking into accounts the payments for all of the children. To my way of thinking, if they're not calculating support properly for all of the children, then, to me, they're not properly doing their jobs. The 2008 Michigan Child Support Formula Manual reads in part "1.02(C) To avoid recalculating support each time the number of children for whom support is paid changes, support provisions for multiple children must include tiered amounts for fewer children. When a support order is for several children, unless it specifies an amount for a particular child, each child’s share of the support obligation is that child’s per capita share of the ordered amount." and:
"3.02(A) To even out support amounts for children of the same parents, whether ordered in one case or multiple cases, calculate base support using the total number of children-in- common. (1) If less than all of the children-in-common are included, then the present case’s base support and the parental time offset (§3.03) is its children’s per capita share of what the amount would be if all of the children-in-common were included on one case. ..." Please note that there's nothing in the 2008 MCSFM that says: "County lines are magical entities, and these rules do not apply when the people calculating support in for children are doing so over those magical county lines." (NO!) In fact, the county lines, or different jurisdictions, to me, should have nothing to do with the amount paid in support, except that, I feel that people are naturally lazy, and disinclined to make any calculations or make phone calls and send FAXes to their counterparts in other counties. This is particularly true when there might exist a financial conflict of interest in the matter, even if it means that they're not acting in the best interests of the children or of the families involved. If I were in such a situation, after communicating with my lawyer, and if he/she agrees, I might calculate the correct and accurate amount of child support, using the 2008 MCSFM, and file it along with a grievance in both counties simultaneously, asking both local FOCs to obey Michigan law, the 2008 MCSFM, and properly calculate support in my children's best interests. I might also talk with my lawyer file an affidavit in both courts stating the facts and how the servants of the court are failing to properly conduct their lawful duties and harming the best interests of my children.
Considerations for Orders with Multiple Payments
Sometimes a court may use income withholding to obtain child support money, but also require the parent to send in a check on a monthly basis to cover arrears. One financial incentive that a local court may have to modify support is if it is improperly using separate payments from arrears paid directly to the court, and/or payments made during show cause hearings to make money for itself. Perhaps when a paying parent makes a payment directly to the court for arrears, or when he/she shows up for a show cause hearing and pays, the court is not properly disbursing the parent's
payments to the children, but rather claiming that money as interest-like fines on arrears, which puts that money in the court treasury, violating the disbursement rules in the Federal Deficit Reduction Act of 2005, which mandates that collected money goes first to the children who are supposed to benefit from child support. Collecting child support debt must be done via the protections of the Federal Consumer Protection Act Federal law mandates that these consumer protections be place for the state to receive child support program (Title IV-D) funding. by saying that they "may not exceed the limit permitted under such section 1673 (b)".  “except that the amount of the allotment, together with any other amounts withheld for support from the wages of the member, as a percentage of his pay from the uniformed service, shall not exceed the limits prescribed in sections  1673(b) and (c) of title 15. “ US Code TITLE 42 > CHAPTER 7 > SUBCHAPTER IV > Part D > § 666 http://www.law.cornell.edu/uscode/search/display.html?terms=1673&url=/uscode/html/ uscode42/usc_sec_42_00000665----000-.html
These restrictions prevent abuses of justice such as a court which takes 100% of a parent's pay check that he/she has no money left on which to survive, and limit maximum payments to 65% of parents income in all cases, and less if the parent is supporting another spouse or other children: http://uscode.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00001673----000-.html For these purposes, income doesn't include health care premiums paid by the parent for his/her own care, and the percentage included in the obligation includes those additional premiums paid by the parent for the health care of his/her own children. (See Title IV-D). Furthermore, the Deficit Reduction Act of 2005 established disbursement rules for collected support, which require essentially that states first pay themselves to reimburse for welfare expenses for the children, and secondly give all remaining money to the other parent for the Some local courts may argue that it's perfectly OK to violate the Deficit Reduction Act of 2005, indicating that it's federal law, and they don't have to follow it. In that case, I would point to the Michigan Court of Appeals, which said in: “The goal in interpreting a federal statute is to give effect to the intent of Congress” Empson-Laviolette v Crago
http://courtofappeals.mijud.net/Digest/ DigestDetail?mode=view&digestId=69125 In that case, the court of appeals, discussing an Indian child's custody, added: “The purpose of the ICWA is to establish minimum standards for the removal of Indian children from their families in order to protect the best interests of Indian children and to promote the stability and security of Indian tribes and their families. .... In a custody proceeding involving an Indian child, a state court must apply the minimum standards articulated in the ICWA unless the applicable state law provides a higher standard of protection to the Indian child’s parent or Indian custodian. Michigan has not provided greater protections than the ICWA, and so the ICWA applies to custody proceedings involving Indian children in Michigan” Empson-Laviolette v Crago http://courtofappeals.mijud.net/Digest/ DigestDetail?mode=view&digestId=69125 I would ask my lawyer to argue by analogy that the purpose of the purpose of the federal Title IV-D program under which the court operates is plainly stated in the Federal law itself: For the purpose of enforcing the support obligations owed by noncustodial parents to their children and the spouse (or former spouse) with whom such children are living, locating noncustodial parents, establishing paternity, obtaining child and spousal support, and assuring that assistance in obtaining support will be available under this part to all children (whether or not eligible for assistance under a State program funded under part A of this subchapter) for whom such assistance is requested, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this part. US CODE TITLE 42 > CHAPTER 7 > SUBCHAPTER IV > Part D > § 651 http://uscode.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000651---000-.html Title IV-D mandates that parents be given a free copy of their account once per year, and more often if they pay the reproduction fees. I would get a copy, review all of my payments, and make sure that the court isn't violating the disbursement rules by taking the money I pay to support my children to pay itself interest-like fines on arrears. I know of no law that allows a court to collect any money for children and claim that it can take the money for itself as arrears and not apply it as child support for the benefit of the children. Besides reimbursement for welfare, Congress clarified that the children are the first recipients of any money collected.
Considerations for an Automatic Imputation of Working Hours
Should a FOC worker indicated that he/she is required to calculate child support based on my current hourly pay rate with an arbitrary work schedule, such as 35 or 40 hours, when work at my current pay rate is only available for a reduced number of hours, such as 20, and other work allowing me to maintain my child's schedule is only available at a reduced pay rate, or simply not available in a manner consistent with my parenting time schedule, I might consider the following. I might point out MCL 552.605, Section 5, Paragraph 2, which says in part: "(2) Except as otherwise provided in this section, the court shall order child support in an amount determined by application of the child support formula ..." http://www.legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-552-605 I might point out that the FOC's job is to help the court by creating a recommendation consistent with that formula. I might review the formula, and I might also try the child support calculator available to members of FRC, do manual calculations, and offer to the FOC my best reasoning as to what the formula amount should be. I might point out the that the 2008 MCSFM says in part: "2.01(B) The objective of determining net income is to establish, as accurately as possible, how much money a parent should have available for support. All relevant aspects of a parent’s financial status are open for consideration when determining support." I might also point out that potential income is covered in the formula: "2.01(G) Potential Income When a parent is voluntarily unemployed or underemployed, or has an unexercised ability to earn, income includes the potential income that parent could earn, subject to that parent’s actual ability." "(1) The amount of potential income imputed should be sufficient to bring that parent’s income up to the level it would have been if the parent had not voluntarily reduced or waived income." If true, then I might voluntarily state that I have found work at minimum wage or whatever the available wage is that is consistent with my parenting time schedule for the extra time period up
to 40 hours, or show that I'm unable to get any work within my parenting time schedule, through a list of places to which I've applied to work. I might present evidence from my employer that my reduction in income and hours is involuntary. I might point out furthermore that the relevant factors to be considered are: "(2) Use relevant factors both to determine whether the parent in question has an actual ability to earn and a reasonable likelihood of earning the potential income. To figure the amount of potential income that parent could earn, consider the following: (a) Prior employment experience and history, including reasons for any termination or changes in employment. (b) Educational level and any special skills or training. (c) Physical and mental disabilities that may affect a parent’s ability to obtain or maintain gainful employment. (d) Availability for work (exclude periods when a parent could not work or seek work, e.g., hospitalization, incarceration, debilitating illness, etc.). (e) Availability of opportunities to work in the local geographical area. The prevailing wage rates in the local geographical area. (f) (g) Diligence exercised in seeking appropriate employment. (h) Evidence that the parent in question is able to earn the imputed income. (i) Personal history, including present marital status and present means of support. (j) The presence of the parties’ children in the parent's home and its impact on that parent’s earnings. (k) Whether there has been a significant reduction in income compared to the period that preceded the filing of the initial complaint or the motion for modification." I might also point that in Berger V Berger, the Michigan Court of Appeals held that: "In determining whether to impute income, a court should consider: ... (5) the availability of employment in the local area, (6) the prevailing wage rates in the local area ...." With this information, I might discuss with my lawyer arguing that automatic imputation of income is inappropriate in this case, as in all cases.
Considerations for Orders to Pay When the Child Lives with Me
Sometimes the court, through its agents the FOC, will delay modifications to the support order when the children are in my care, either I am their full time parent, or I have more parenting time than is reflected in the order. Given the information in the previous section, I would ask my lawyer to contend therefore, that any purpose other than “enforcing support obligations owed by noncustodial parents to their children and spouse (or former spouse) with whom such children are living” is not a lawful purpose under federal law. If the living arrangement of the child is not properly considered in the calculations, or if the calculations are somehow otherwise incorrect, or since the court is not using the money collected to support the other parent and children, but rather violating disbursement rules and keeping the money for itself, this is not an enforcement of a proper support obligation, and it's not a proper purpose of the program or of federal funds used to sponsor it. Therefore, improperly enforcing an improperly computed support obligation, with federal tax dollars “fails to give effect to the intent of Congress”. Just as when Michigan law fails to protect Indian children in the IWCA, the IWCA must be used, so here also, when Michigan law would otherwise fail to ensure that children are properly supported, so must the court also look at the intent of Congress and apply the minimum standards of that law. Such minimum standards include, but are not limited to: “A State plan for child and spousal support must ... (A) provide services relating to the establishment of paternity or the establishment, modification, or enforcement of child support obligations, as appropriate, under the plan ... “ US CODE TITLE 42 > CHAPTER 7 > SUBCHAPTER IV > Part D > § 654 http://uscode.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000654---000-.html And therefore, I might ask my lawyer to argue, I feel that such services for modification of the obligation, including to reflect the actual living situation of the children, must be made available under federal, as well as state, law. And under Empson-Laviolette v Crago, if state law is not adequate, the court must interpret the intent of Congress and give that intent effect by making modification services available. However, there's no guarantee that the Court of Appeals or any other court will agree with the analogy or with any other arguments. See also Champion v Secretary of State below.
I would also request that any modification extend back to when the child first came to live with me, or when I first informed an agent of the court, on the grounds that the other parent's modified obligation to the child began on that day.
Considerations for Motions To Modify Support
One option I may consider is filing motions directly with the court. Michigan Court Rules: Chapter 2: Civil Procedure http://coa.courts.mi.gov/rules/documents/1Chapter2CivilProcedure.pdf Any review in preparation for action, for me, would include a reading of "Subchapter 2.600 Judgments and Orders; Postjudgment Proceedings" In particular, with regards to a child support order to which I'm subject and which I don't feel follows the 2008 MCSFM, I might file a motion under several different rules on the grounds that the calculations were clearly erroneous due to either a clerical mistake or intrinsic fraud on the part of a servant of the court. If my total contributions to the welfare of my children (withholding, medical premiums, etc) is greater than 65%, I might also motion on the grounds that such a portion of the order is void. The rules that may be relevant include: Rule 2.611 New Trials; Amendment of Judgments ("A verdict is clearly or grossly inadequate or excessive") Rule 2.612 Relief From Judgment or Order Rule 2.613 Limitations on Corrections of Error (facts set aside must be "clearly erroneous") Rule 2.614 Stay of Proceedings to Enforce Judgment Also, I could motion for waiver of fees, and enter a supporting affidavit which includes the relevant facts, stating that I have no money because of the judgment of the court Rule 2.002 Waiver or Suspension of Fees and Costs for Indigent Persons I might consider motioning for suspension of fees simultaneous with motions for a new trial, relief from judgment, etc. Under MCR 2.0002, I think that I can just basically include an affidavit all of the relevant facts in the motion for waiver of fees showing what I earn, how much I'm required to be paid, and that I have no real capacity to pay fees. I would note "Rule 2.113 Form of Pleadings and Other Papers", and try to follow them to the
best of my abilities. I would also ask the court for its pro-se or pro-per manuals, and check on the court's web site for the same. Someone made a template "Answer to Motion" that may be relevant in getting the physical formatting right. http://www.scribd.com/doc/6343612/Answer-to-Motion Also, I believe that legal secretaries are adept at doing this sort of thing. http://en.wikipedia.org/wiki/Legal_secretary I might use Google to find a 1-3 legal secretaries, call them, talk to them, and see to what extent they can help me prepare motions. I would also be prepared to consider an appeal on due process grounds if my motions are summarily dismissed. In fact, it may be helpful for me to review my due process rights before making any motions. I might take a look here as a starting point: http://www.scribd.com/doc/9131878/Considerations-for-Appeal-of-Discovery-Rulings-inMichigan-Family-Law I also might ask the court to appoint me a lawyer, as my fundamental liberty interests in the care and custody of my children are at stake, and I don't have the money to hire one myself. I think that this will probably be denied, but there's always a chance. http://www.scribd.com/doc/9131878/Considerations-for-Appeal-of-Discovery-Rulings-inMichigan-Family-Law Note that one consequence of filing a motion in bad faith is to be held in contempt of court: Rule 2.116 Summary Disposition I would also note that such contempt rulings may be used as legal cover for other purposes, such as suppressing facts or punishing "trouble makers", if I'm facing a racketeering enterprise, of which there is some evidence at the Friend of the Court: http://www.scribd.com/doc/454566/Racketeering-in-Michigans-Friend-of-the-Court If I'm going to be arrested for a contempt charge anyway based on an order which I think is impossible to meet, I would consider filing motions to fix the situation first.
Considerations for Child Support Orders When the Both Parents are Married/Statue of Limitations
A father contact the FRC yahoo group and indicated that he had married the mother of his child while they both attended college. The FOC had established a child support order while he was unmarried, and simply refused to remove the order. As a student he was unable to pay, amassed child support arrears while married, and the FOC is demanding fines, fees, and arrears for the time that the parents were married. The FOC also ignored the statute of limitations MCL 600.5809, which reads in part: "(4) For an action to enforce a support order that is enforceable under the support and parenting time enforcement act, Act No. 295 of the Public Acts of 1982, being sections 552.601 to 552.650 of the Michigan Compiled Laws, the period of limitations is 10 years from the date that the last support payment is due under the support order regardless of whether or not the last payment is made." http://legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-600-5809 What does Michigan law and what do Michigan courts say about collecting child support in this manner? "The purpose of child support is to provide for the needs of a child. The parents of a child are not permitted to bargain away a child's right to receive adequate support ... " Macomb County Department of Social Services v Westerman http://courtofappeals.mijud.net/Digest/ DigestDetail?digestId=40555&mode=view#216305 How is harassing married parents, making up phantom arrears, creating make work for youself and generating fines that you take from the parents and child providing for the needs of the child? To me, it's not. Also, note “The goal in interpreting a federal statute is to give effect to the intent of Congress” Empson-Laviolette v Crago http://courtofappeals.mijud.net/Digest/ DigestDetail?mode=view&digestId=69125
OK, so did Congress intend for the state to interfere in the affairs of married parents? They told us what their intent was: For the purpose of enforcing the support obligations owed by noncustodial parents to their children and the spouse (or former spouse) with whom such children are living, locating noncustodial parents, establishing paternity, obtaining child and spousal support, and assuring that assistance in obtaining support will be available under this part to all children (whether or not eligible for assistance under a State program funded under part A of this subchapter) for whom such assistance is requested, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this part. http://uscode.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000651----000-.html It seems pretty clear that two married parents and their child were never an intended target of this program. So, that means, to me, that there's no statutory authority for the court's actions in attempting to collect a child support order between two married parents. What should the court do in this case? The legislature gave the courts instructions as to how to handle this: 552.625i Return of forwarded money to payer; reimbursement of fee, cost, or penalty; interest; allocations. Sec. 25i. (1) If, after a financial institution forwards money to the state disbursement unit, all of the forwarded money is returned to the payer due to a mistake of fact or court order, the title IV-D agency shall reimburse the payer for a fee, cost, or penalty that the financial institution assessed against the payer under section 25g. The title IV-D agency shall also compensate the payer for the amount of interest that the financial assets would have earned had they not been converted and forwarded to the SDU, to the extent that the interest can be determined with a reasonable degree of certainty. http://www.legislature.mi.gov/mileg.aspx?page=getObject&objectName=mcl-552-625i The legislature made it clear. Right your wrong. Return the money. Pay back the fees that the parent never owed. There was some discussion that parents were often forced to waive their rights to the statute of limitations under threat of jail. As a non-lawyer, it's not clear to me whether that is legal. Demanding that someone give you something or you will imprison them may be extortion. If given such an option, and forced to sign such a waiver or go to jail, I might elect to write in caps "SIGNED UNDER EXPLICIT THREAT OF IMPRISONMENT MADE BY MR/MRS SOAND-SO" and sign over my disclaimer.
Obtaining Child Support Account Status Information
Michigan has a new MiCase web site so that parents can automatically get accurate information on their child support case. https://apps.michigan.gov/MiCase If I wanted, with the assistance of my lawyer, I might also request "timely information on the current status of support payments under an order requiring payments to be made by or to the parent" as required by US Code TITLE 42 > CHAPTER 7 > SUBCHAPTER IV > Part D > § 654b. I might also ask the other parent to do the same, so that we might compare the responses and verify that no money has accidentally been lost in transit. http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000654---b000-.html Even if Michigan law doesn't explicitly provide for account status information, or audits, then I personally believe that under a recent court of appeals ruling, this "thing" must be created, because it is a required procedure to get the federal welfare funds which are required by the state's compelling interests in collecting and distributing child support. US Code TITLE 42 > CHAPTER 7 > SUBCHAPTER IV > Part D > § 654b § 654b. Collection and disbursement of support payments says in part: "(b) Required procedures The State disbursement unit shall use automated procedures, electronic processes, and computer-driven technology to the maximum extent feasible, efficient, and economical, for the collection and disbursement of support payments, including procedures— ... (4) to furnish to any parent, upon request, timely information on the current status of support payments under an order requiring payments to be made by or to the parent, except that in cases described in subsection (a)(1)(B) of this section, the State disbursement unit shall not be required to convert and maintain in automated form records of payments kept pursuant to section 666 (a)(8)(B)(iii) of this title before the effective date of this section." http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000654--b000-.html
While I'm not aware of any specific thing in Michigan law that allows "timely information on the current status of support payments", I believe that Michigan's Supreme Court has, in effect, recognized the supremacy of federal law in child support matters: Champion v Secretary of State Released: October 16, 2008 MCL 257.307(1)(a) Domestic Relations - Child Support - Enforcement - Federal Funds - Qualification - Enforcement Program Welfare - Federal Funding - Requirements - Child Support Enforcement To qualify for various federal welfare funds, a state must certify that it will operate a child support enforcement program which conforms to the child support enforcement act, being certain provisions of the Social Security Act, and that it will do so pursuant to an approved detailed plan. The state must collect overdue support payments, establish comprehensive systems to establish paternity, locate absent parents, and help families obtain support orders. Domestic Relations - Child Support - Enforcement - Government Interest The government has a compelling interest in the establishment of paternity, the tracking and locating of parents legally obligated to pay child support, the enforcement of support obligations, and the collection of support payments, and doing so in timely fashion, along with otherwise having in place a data-collection mechanism and network to assist in locating individuals, establishing paternity, and enforcing support obligations with respect to future births and parental responsibilities. The requirement of the federal child support enforcement act that driver’s license applicants furnish their social security numbers, as incorporated into state law, promotes these interests. http://coa.courts.mi.gov/Digest/DigestDetail?mode=view&digestId=69405 So, I say something like, “In Champion V Secretary of State, the Michigan Court of Appeals held that "[t]o qualify for various federal welfare funds, a state must certify that it will operate a child support enforcement program which conforms to the child support enforcement act, ... ", and further that "US Code TITLE 42 > CHAPTER 7 > SUBCHAPTER IV > Part D > § 654b" mandates "Required procedures ... [including procedures] ... to furnish to any parent, upon request, timely information on the current status of support payments under an order requiring payments to be made by or to the parent ... ". To me, this is an important point. To me, the Michigan Court of Appeals has held, in essence,
that all of the requirements of the Title IV-D program are, even without explicit legislative authorization, the law of the land in the state of Michigan.
Periodic Arrears Caused By Paycheck Timing (Normally Bi-Weekly)
MCL 552.605c(2) says in part "the friend of the court shall not consider the payer as having an arrearage if a periodic temporary arrearage is created based upon the conversion of the monthly support order to an income withholding order or other payment schedule" However, I feel that some local courts, and perhaps all of them, fail to properly interpret this statute to give effect to the legislature's intent of not requiring parents who pay on time through deductions to be fined, it fails to give effect to every clause in the statute, and it renders MCL 552.605c(2) nugatory and surplusage. http://legislature.mi.gov/mileg.aspx?page=getobject&objectname=mcl-552-605c http://www.merriam-webster.com/dictionary/nugatory http://www.merriam-webster.com/dictionary/surplusage In contrast, note the appellate digest entry for People V Blunt: Statutes - Construction - Legislative Intent When construing a statute, a court must ascertain and give effect to the Legislature’s intent. The first step in that determination is to review the language of the statute itself. Statutes - Construction - As a Whole In discerning legislative intent, a court gives effect to every word, phrase, and clause in a statute, and construes the act as a whole to harmonize its provisions and carry out the purpose of the Legislature. Words and phrases are considered in context, and a particular word in one statutory section must be interpreted in conjunction with every other section. Statutes - Construction - Surplusage A court must avoid construing a statute in a manner which renders statutory language nugatory or surplusage. http://coa.courts.mi.gov/Digest/DigestDetail?mode=view&digestId=69825
The net effect of this is that good parents who are obeying the law and paying their child support on time are accused of being in arrears, and fined, when the law clearly says to me that they should not be. This hurts the parents, and the children, who both can't enjoy the fruits of the parent's labors. Furthermore, in one case, I believe that a father was denied the consent of running for office as a member of a major political party because of his arrears only stemming from these periodic issues. He had been gainfully employed and had paid his child support faithfully for years.
The 2008 Michigan Child Support Formula Manual and Substantial Daytime Care
If a parent cares for his/her child and brings the child to the other parent simply to lay down his/ her head, this, to me, is called "substantial daytime care". This can often happen with a weekday visitation, and while it's in the 2008 MCSFM, I don't think it's used often to properly adjust support for the best interests of a child. However, the 2008 MCSFM specifically mentions it as a deviation factor. To me, given that many parents do this, it should be baked in (e.g. treated as 0.75 overnights). However, it is not, and it appears that the parent, through his/her lawyer, must specifically request a deviation. Deviation Factors 1.04(E) Strict application of the formula may produce an unjust or inappropriate result in a case when any of the following situations occur: (17) A parent provides a substantial amount of a child’s day-time care and directly contributes toward a significantly greater share of the child’s costs than those reflected by the overnights used to calculate the offset for parental time. I might discuss with my lawyer the idea that the court should deviate from the formula based on credible evidence of my "substantial day-time care", including the fact that I'm paying for the food, entertainment, and utility costs for my child while the other parent is credited. "(1) Base support mainly considers the cost of supporting a child who lives in one household. When a parent cares for a child overnight, that parent should cover many of the child’s unduplicated costs, while the other parent will not have to spend as much money for food, utility, and other costs for the child." Unfortunately, many "standard" parenting time orders include substantial day time care, but the 2008 MCSFM does not properly adjust the child support paid for this care automatically.
Parenting Time Offsets in the 2008 Formula, and How Committing Fraud is Easy with Form FOC10
Firstly, under the 2008 MCSFM, all parenting time is part of the formula, and there are no parenting time offsets. See section 3.03. http://www.courts.michigan.gov/scao/resources/publications/manuals/focb/ 2008MCSFmanual.pdf There are expenses to maintaining a household for a child when that child is not in the home, including rent/mortgage on space dedicated to the child and utilities to keep that space in working order. and utilities such as heat, A/C (although I recommend blocking the duct and closing the door if no one is going to be in the child's room all summer). These expenses apply to both parents. The parenting time offset formula is designed to calculate the portion of the child's expenses that are allocated to each party. I personally think that this is a mistake, but the change was made to reduce paperwork at the SCAO. http://courts.michigan.gov/mji/webcast/2007-08/032508/ 2008_Changes_to_Michigans_Child_Support_Formula_presentation.pdf Search for "offsets" and note the reference to "cost savings". Also search for "PTO" and note the words "Only Do It Once" I've seen other mentions also. Note that the new foc10.pdf form doesn't have the abatement language of the old form. (link below) Acts of fraud made easy by this form include lying to a parent and telling him/her that the parenting time offset has been applied, and intentionally not applying it, and using those lies in court to set an obligation, or out of court to secure a voluntary agreement regarding child support. The new foc10.pdf form almost appears to promote fraud by allowing the person filling out the form to simply check a box stating that PTO has been applied, while not applying it, and not showing the amount of PTO. http://courts.michigan.gov/SCAO/courtforms/domesticrelations/support/foc10.pdf Furthermore, a child support specialist bent on defrauding a parent has many opportunities to fail to follow the 2008 MCSFM which are completely invisible to the parents on the form. FOC10 appears to almost be intentionally designed to prevent parents from determining whether support has been properly calculated. Not listed items include, incomes used for both parents, offsets for
medical care based on the income of both parents, offsets for medical premiums paid by either parent, offsets for retirement savings of up to 5.5%, offsets for other children not computed in the obligation, and offsets for parenting time. Personally, I think that people should start automatically handing people generating these figures interogatories asking for exactly the amounts used and offsets made in calculating the formulas, and the results of each step. Without this information, it's almost impossible to determine whether the formula has been correctly applied or not. (Actually, if the FOC worker is consistently over-applying the formula, it's probably rather easy to figure that out by running bogus numbers and showing that the result could not possibly be legitimate). In particular, I suspect almost no parent who provides substantial daytime care is getting their child's support obligation properly computed to reflect it. This is ironic, because one of the biggest features of the 2008 child support formula that has been touted by advocates is the inclusion of daytime care, and yet, it probably isn't applied in the vast majority of cases. See: Child Support: Making a Molehill out of a Mountain Karen S. Sendelbach Michigan Bar Journal http://www.michbar.org/journal/pdf/pdf4article1364.pdf On the FRC yahoo group, I know of no one who has successfully applied for and received a deviation based on daytime care, yet most parents with any significant parenting time and who pay child support regularly provide day time care for their children, normally bi-weekly.
Parenting Time Offsets Could Often Be Insignificant
One interesting test of the parenting time offset is to estimate how much time a child spends with a paying parent before a significant portion of the family resources are used for his/her care with the paying parent. There's a concept called the just noticeable difference, where any difference below a threshold is simply not noticeable, or is insignificant to the people involved. http://en.wikipedia.org/wiki/Just-noticeable_difference A typical just noticeable difference is 2%. When both parents have $20,000 in annual net incomes, or a monthly net income of $1,666.67, the total monthly base support for the child is $703.71 (Section 3.02(B) using my child support calculator). Given that the paying parent spends no time with a child, his/her monthly base support obligation is $351.85 (not including ordinary medical, medical insurance premiums, or child care), and the caring parent also contributes $351.85.
How many overnights does child need to spend with the paying parent before there is any noticeable difference in the amount of money available to the paying parent to improve the standard of life of the child? We'll treat 2% as significant. The total amount f the child's monthly $703.71 paid by the paying parent must be decreased by 2%, or $14.07, giving the paying parent a net obligation of $337.78. The child would have to spend 79 overnights with the paying parent before he/she noticed any improvement in his/her living conditions at the paying parent's home. Remember that daytime care is a deviation factor that most parents never know to ask for, so in addition to these 79 dinners with the paying parent, the child may also spend one alternate weekday with the parent, or 26 additional weekdays. That's 105 dinners before the child notices any perceptible difference in the way his/her own money is allocated for him/her. That's one parent eating steak alone, while the child and the other parent dine on mac and cheese. After 105 dinners, perhaps a typical child might notice every once in a while that the mac and cheese has peas in it. Yet, we are to believe that: "[the new formula] more accurately reflects the actual cost changes when parents move from having one home for their child toward two homes ... Under the new rules, child support begins to reduce when the noncustodial parent has 95 overnights—a much earlier reduction." Child Support: Making a Molehill out of a Mountain Karen S. Sendelbach Michigan Bar Journal http://www.michbar.org/journal/pdf/pdf4article1364.pdf At 95 overnights, the paying parent's monthly obligation is now $322.48, a whopping monthly reduction of $29.37, or a net transfer of 4% of the child's money from the recipient parent to the paying parent. Such a child probably has bi-weekly daytime parenting time, and probably has no deviations, so he/she eats dinner at his/her paying parent's home a total of 95+26=121 nights each year, or 34% of the time. Yet, on a monthly budget of $703.71, only a paltry $29.37 can be allocated to a child who spends about a third of his/her waking hours at one parent's home. That's for his/her cable TV, DVDs, dinner, Internet access, dedicated bedroom, heating, cooling, entertainment expenses including movies out, presents, toys, and entertainment expenses for the child's friends. Such a disparity inevitably creates an obviously better living conditions for the child at the payment recipient's parent's home. Disturbingly, someone at the FOC may have manipulated graphs comparing the two appear to make the change appear less radical than it actually is. The 2004 MCSFM had a cliff when the paying parent had 110 overnights or more. However, in the "Changes to Michigan's Child Support Formula Presentation" , a graph of PTO offsets which purports to shows the new
formula offsetting by less than 109 overnights, and more than 110 overnights, thus eliminating "the cliff effect" has the cliff at about 126 nights. Furthermore, this graph doesn't account for the net transfer of the child's money to the paying parent when he/she cares for the child for 6 or more consecutive overnights. Changes to Michigan's Child Support Formula Presentation PTO offset graph page 8 or slide 22 http://courts.michigan.gov/mji/webcast/2007-08/032508/ 2008_Changes_to_Michigans_Child_Support_Formula_presentation.pdf The changes don't merely eliminate a cliff effect. They represent a significant transfer of the child's income from one parent to another. Don't believe me, believe Karen S. Sendelbach, who wrote "the previous SERF amount is not realized until 150 overnights". She probably could have clarified with "from 110 overnights - and not including the eliminated consecutive overnights provision" (ibid) However, we are thankful to learn that: "The Family Law Section determined to address this as one of the most significant problems facing family law practitioners. The section created a Child Support Committee, headed by Kent Weichmann and Carlo Martina, who spent hundreds of hours working on proposals to address this issue. They were successful in resolving this complex issue, and the impact on family law will be significant." (ibid) I simply don't understand the reasoning of the family law section as to why this obvious imbalance is good for children. However, I know one thing. Given that Title IV-D funding is based on the number of dollars of child support collected, and that higher child support amounts generate more enforcement efforts and more federally reimbursable hours for the FOC, this change is great for the Friend of the Court, no matter how much it appears to me to harm Michigan's children. See also: A Quick Summary of Title IV-D Funding and Incentives Doug Dante http://www.scribd.com/doc/630611/A-Quick-Summary-of-Title-IVD-Funding-andIncentives
Other concerns include: More information on possible racketeering in the FOC: http://www.scribd.com/doc/454566/Racketeering-in-Michigans-Friend-of-the-Court More information on show cause hearings. http://www.scribd.com/doc/406110/Some-Thoughts-For-Parents-Facing-A-Contempt-of-CourtHearing 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-SupportModification-Request Or refuse to respond to legitimate parenting time violations: http://www.scribd.com/doc/550881/When-the-Friend-of-the-Court-Doesnt-Respond-ToParenting-Time-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. 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-CourtHearing 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-BeforeIt-Begins 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-Recordsusing-FERPA 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-beTreated-As-Unreliable 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-Supporton-HimselfHerself-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-inMichigan Or they may use biased custody evaluators: http://www.scribd.com/doc/2561734/Some-Thoughts-on-Child-Custody-Hearings Or lawyers and judges may fail in their mandatory ethical duties to report ethics violations of their peers: http://www.scribd.com/doc/2618443/YOU-are-a-mandated-reporter Or the mediators may not appear to act honestly, referees may seem less than fair, and judges may rubber stamp decisions:
http://www.scribd.com/doc/3123830/Michigan-Child-Custody-Survey-Report Or the procedures on getting public information from the judiciary may be obscure and confusing: http://www.scribd.com/doc/3584335/How-to-Get-Public-Information-From-the-MichiganJudiciary For local FOCs: Oakland: http://www.scribd.com/doc/362206/Oakland-County-Friend-of-the-Court-Ignores-the-Law-andHurts-Kids Macomb: http://www.scribd.com/doc/3987229/Macomb-County-Friend-of-the-Court-Ignores-the-Lawand-Hurts-Kids Ingham http://www.scribd.com/doc/362198/Ingham-County-Friend-of-the-Court-Is-Ignoring-The-Lawand-Hurting-Kids Kent http://www.scribd.com/doc/6507067/Kent-County-Friend-of-the-Court-Ignores-the-Law-andHurts-Kids Be aware of House Joint Resolution NN, which would have added already protected federal rights of parents to Michigan's constitution, and how a vote on it was stopped in a potentially unconstitutional manner in the Michigan House: http://www.scribd.com/doc/1452062/Send-Michigan-Reps-a-Thank-You-For-House-JointResolution-NN http://www.scribd.com/doc/4525506/-House-Joint-Resolution-NN-Specific-Problems-and-HowIt-Will-Help-Michigans-Children http://www.scribd.com/doc/4339855/-Its-Time-To-Help-Parents-and-Children-By-Passing-HJRNN http://www.scribd.com/doc/15612945/Possibly-Unconstitutional-Failure-to-Discharge-HJRNN Related short fiction: http://www.scribd.com/doc/2261150/Fiction-Congratulations-Now-Pay-Up Two free on line communities that you may find useful are: http://groups.yahoo.com/group/FRC/ http://groups.yahoo.com/group/michdads/
Be aware that FOC custody recommendations vary significantly between various FOC offices , and these variations also create differences in custody recommendations between various population groups. http://www.scribd.com/doc/6169001/Analysis-of-Friend-of-the-Court-CustodyRecommendations I would be aware of my ability to make discovery motions, with my lawyer or on my own, and my rights to discovery as they relate to my fundamental liberty interests to the care and custody of my child: http://www.scribd.com/doc/9131878/Considerations-for-Appeal-of-Discovery-Rulings-inMichigan-Family-Law I would be aware of potentially illegal lobbying by the Friend of the Court Association at taxpayer expense: http://www.scribd.com/doc/12744555/Is-the-Friend-of-the-Court-Stealing-Taxpayer-DollarsFrom-Children-for-Illegal-Lobbying I would have an understanding of the Friend of the Court and the ways in which it can be easily improved. http://www.scribd.com/doc/12745431/Suggestions-to-Help-the-Michigan-Friend-of-the-CourtStrengthen-Families I would be aware of my rights as a parent with regards to Lawyer Guardian Ad-Litems who represent my children, and work with my lawyer if I had concerns regarding the LGAL on my case: http://www.scribd.com/doc/15639627/Lawyer-Guardian-AdLitem-in-Matters-of-Child-Custody If at all possible, I would seek the help of a good lawyer!
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