Suggestions to Help the Michigan Friend of the Court Strengthen Families

Doug Dante This article originally appeared in “Michigan Family Defender” Volume 1, Issue 3, pages 1819, published by the Family Rights Coalition of Michigan. Michigan Friend of the Court child custody recommendations vary widely by county and by population group, parents surveyed say that the quality of FOC domestic relations mediation is poor, and parents reported negatively about their experiences with judges and referees. However, by taking simple and free steps to open the Friend of the Court and the courts, including publishing more detailed statistical summaries, Michigan can strengthen families by giving parents the information that they need to act in the best interests of their children and themselves. The Friend of the Court assists the court "to encourage and assist parties voluntarily to resolve contested domestic relations matters by agreement; to compel the enforcement of parenting time and custody orders; and to compel the enforcement of support orders" (MCL 552.501) Although privatization of mediation is encouraged (MCL 552.513), most local FOCs mediate child custody and parenting time disputes between parents internally. Should mediation fail, a FOC professional makes a recommendation regarding a child's custody using the best interests factors (MCL 722.23) which is normally approved by a referee, and only reviewed by a judge de novo on request (MCL 552.507). The Friend of the Court is funded through the Federal Title IV-D program, state matching (USC Title 42, Ch 7, IV-D), local counties, and parent fees. This funding creates financial conflicts of interest for the FOC. (tinyul dot com slash 6benex) How likely you are to receive custody of your child may depend more on where you live or the color of your skin, and less on the content of your character, based on an analysis of Friend of the Court child custody recommendations I recently completed. For 2003, the most recent year for which any data was available, there were wide, and inexplicable, variations among groups of 100 or more families. Joint physical custody varied from a low of 7% in Lenawee County to a high of 47% Claire County, mother sole custody varied from a low of 35% in Livingston County to a high of 87% in Wayne County, father sole custody varied from a low of 4% in Wayne County to a high of 31% in Macomb County, and the combination of either father sole custody or joint custody combined varied from a low of 12% in Wayne County to a high of 63% in Livingston County. Assuming that fathers of all races and ethnic backgrounds are treated fairly in the counties in which they reside, these variations mean that African

American fathers are only about three fifths (3/5ths) as likely to receive a custody recommendation for father custody as white non-hispanic fathers. These recommendations, weighted for population, give overall mother custody at 60.85%, joint physical custody at 20.39%, and father custody at 17.65%, although the source data from the FOC is incomplete. (tinyurl dot com slash 3fdgnj) Child custody recommendations are only necessary if the mediation between the parents to form a voluntary agreement for their children fails. However, a recent child custody survey report I completed showed serious problems with FOC mediation. 32% of respondents did not, or believed that they did not, meet with a mediator. Of those meeting with a mediator, 82% of parents felt that the mediator did not act with honesty, integrity, and impartiality, 85% felt that he or she was not a neutral third party, and 89% felt that he or she did not facilitate communication between parties to promote settlement. Of those who met with an FOC employee mediator, 42% felt that the mediator also provided other domestic relations services, in violation of state law. (tinyurl dot com slash 623d5r) Recommendations are to be reviewed by a referee or a judge, who can properly apply the law to each case. However, many parents surveyed reported serious problems with judges and referees, and most simply agreed with the FOC. 94% reported that the referee in their case effectively backed the FOC recommendation, and 100% reported that the judge in their case backed the referee or FOC, and most parents never saw the judge assigned to their case regarding the custody of their child. All of these problems can be fixed quickly and easily by the judiciary itself. By administrative order, Michigan's judiciary can order that all FOC professionals or offices who make a statistically significant number of custody recommendations be required to publish the statistical summary of their recommendations annually. Parents who care about their children will access that information and object if they believe that the FOC professional or office is biased. Administrative orders can be implemented to outsource mediation to qualified and wise members of the community such as counselors, ministers, and rabbis, as intended in the Friend of the Court Act (MCL 522.513,). Michigan's judiciary can also order referees and judges to report to the public on their own rulings, as well as how often they actually see the parents and children whose fate they are deciding, and how often they agree or disagree with their subordinates. With these changes, parents can gain the information that they need to verify that a FOC professional or judicial official doing his/her job properly. Should legislation be needed, the legislature can pass a revenue neutral Friend of the Court Sunshine Act (like the one I proposed at tinyurl dot com slash 42r6hy) to require accurate disclosures of Friend of the Court activities. By providing more detailed statistical summaries for each counselor, referee, or judge, Michigan courts can empower parents and the public whom it serves to recognize poor FOC mediation, inconsistent custody recommendations, and pass-the-buck judicial performance, before such problems lead to a bad decision that might harm their children.

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