Ingham County Friend of the Court Ignores the Law and Hurts Kids

Doug Dante Updated: Oct 12, 2008

I am not a lawyer and this is not legal advice. The Ingham County Friend of the Court is violating current law by creating a Conciliator who is normally a psychologist. This person effectively makes all decisions about a child's custody and welfare without rules of evidence or threat of perjury, which means that custody decisions are often based on which parent lies the best.

Some General Concerns for any Local Michigan Friend of the Court
The court has a financial conflict of interest that may discourage joint physical custody or the higher earning parent to obtain custody of children: Some local Friend of the Court offices may delay or deny legitimate child support modification requests: Or refuse to respond to legitimate parenting time violations: Or engage in troubling retaliatory practices: Or may operate without knowledge of problems that fatherlessnes cause for children: 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: Some local FOCs may improperly use internal mediators. 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: Some local FOCs may fail to allow contemptors to speak at contempt hearings: Some local FOCs may fail to properly ensure that the civil rights of parents are respected: Some local FOCs may fail to enforce parent's rights to their children's school or medical records:

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: 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: Or they may back date forms, etc, making it difficult for parents to obtain justice: 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: Or they may use biased custody evaluators: Or lawyers and judges may fail in their mandatory ethical duties to report ethics violations of their peers: Or the mediators may not appear to act honestly, referees may seem less than fair, and judges may rubber stamp decisions: Or the procedures on getting public information from the judiciary may be obscure and confusing: For local FOCs: Oakland: Macomb: Ingham Kent:

Kids Be aware of House Joint Resolution NN, which would add already protected federal rights of parents to Michigan's constitution: Related short fiction: Two free on line communities that you may find useful are: 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.

Some Concerns Regarding Conciliators in Ingham County
The Ingham County Friend of the Court is violating current law by creating a Conciliator who is normally a psychologist. This person effectively makes all decisions about a child's custody and welfare without rules of evidence or threat of perjury, which means that custody decisions are often based on which parent lies the best. This is in direct violation of the Friend of the Court Act, which mandates that referees do this duty, record evidence, swear in witnesses, etc. These children and their parents are not given any of the protections that the law mandates for them, making it easier for dangerous and violent parents to gain sole custody of them. The processes for Ingham County FOC, especially the Conciliator, based on their on line handbook, are similar to those processes of Oakland county, especially the Family Counselor, and violate the laws in similar ways. See also: Oakland County Friend of the Court Ignorees the Law And Hurts Kids For example: Whether or not the parties are in agreement, the Friend of the Court Conciliator will make a timely recommendation to the Court, which will become a temporary order. This is not consistent with the Friend of the Court Act, which says (From MCL 522.501 Section 1, Paragraph 2): The purposes of this act are to enumerate and describe the powers and duties of the friend of the court and the office of the friend of the court ... " There is no Conciliator provided for in the in the Friend of the Court Act. The Friend of the Court Act does not delegate the authority to create such a position to any county Friend of the Court. However, the Ingham County FOC Handbook says that they must provide conciliation: The Friend of the Court has the following duties according to the law: ... 2. To provide meetings, conferences and conciliation as ways of settling disagreements over custody and parenting time of children. ... (emphasis added) However, if the law requires the Ingham County FOC to provide conciliation, then it has a funny way of showing it. The words "conciliation", "conciliator", etc do not appear in the law. The law does not provide for nor allow room for a conciliator. Meetings and conferences are always voluntary under the law. The word "voluntary" is incorrectly omitted here. The Friend of the Court is also has no powers to make a recommendation to the court under the Friend of the Court Act. Only the Referee may do this (From MCL 522.501 Section 7) (1) The chief judge may designate a referee as provided by the Michigan court rules. (2) A referee may do all of the following: (a) Hear all motions in a domestic relations matter, except motions pertaining to an increase or decrease in spouse support, referred to the referee by the court. (b) Administer oaths, compel the attendance of witnesses and the production of documents, and examine witnesses and parties. (c) Make a written, signed report to the court containing a summary of testimony given, a statement of findings, and a recommended order; or make a statement of findings on the record and submit a recommended order. Please note that the law, not mentioning Conciliators, also does not give them any power to hear motions, adminster oaths, compel attendance, or make a signed report. In fact, Conciliators are doing all of the things that referees are supposed to be doing, but conveniently avoiding all of the requirements of referees under the law to record testimony, follow rules of evidence, etc. Conciliators are also mediators. Again, I don't believe that this is legal. The Friend of the Court Act 552.513 Domestic relations mediation, says in part: (1) The office shall provide, either directly or by contract, domestic relations mediation to assist the parties in settling voluntarily a dispute concerning child custody or parenting time that arises in a friend of the court case. Parties shall not be required to meet with a domestic relations mediator. The service may be provided directly by the office only if such a service is in place on July 1, 1983, if the service is not available from a private source, or if the court can demonstrate that providing the service within the friend of the court office is cost beneficial. Any expansion of existing services provided by the court on July 1, 1983 shall be provided by an individual meeting the domestic relations mediator minimum qualifications listed under subsection (4).

Counseling is obviously available from many private sources in Ingham County. I doubt that the court has a study on file showing that the service within the FOC office is beneficial, particularly one conducted by an independent party. The Conciliator both provides mediation and makes recommendations. By mixing the investigative and the mediation duties, the Ingham County FOC appears to force parties to meet with Conciliators, and thus with mediators, in apparent violation of the paragraph above. Paragraphs 2 and 3 make this more clear, by requiring strict confidentiality from mediators: (2) If an agreement is reached by the parties through domestic relations mediation, a consent order incorporating the agreement shall be prepared by an employee of the office who is a member of the state bar of Michigan; under section 22, by a member of the state bar of Michigan; or by the attorney for 1 of the parties. The consent order shall be provided to, and shall be entered by, the court. (3) Except as provided in subsection (2), a communication between a domestic relations mediator and a party to a domestic relations mediation is confidential. The secrecy of the communication shall be preserved inviolate as a privileged communication. The communication shall not be admitted in evidence in any proceedings. The same protection shall be given to communications between the parties in the presence of the mediator. If no agreement is reached, then there is no consent order, and the conciliator, who is probably not a member of the state bar, can't work with the member of the state bar or either attorney to draw up the agreement. However, the conciliator (mediator)does both. “Whether or not the parties are in agreement, the Friend of the Court Conciliator will make a timely recommendation to the Court“ Mediators should never do that! It violates confidentiality. Even if they were to communicate with anyone, they should only communicate with a member of the state bar or an attorney - not the court directly, yet that's exactly what the job description says that they do! If a mediator is conducting an investigation and making recommendations that go before a Referee or Judge, then there is no way that communications with this person can be reasonably considered "confidential". If the State of Michigan didn't make it clear enough that they didn't want mediators to be investigators too, they added MCL 552.515 Section 15, Performance by mediator of certain functions involving party prohibited: An employee of the office who performs domestic relations mediation in a friend of the court case involving a particular party shall not perform referee functions, investigation and recommendation functions, or enforcement functions as to any domestic relations matter involving that party. So a conciliator who provides mediation cannot also conduct investigations. However, Ingham county

conciliators appear to ignore Michigan law, because they are FOC employees who act as both mediators as well as effectively acting as referees without the appropriate training or due process safeguards. Conciliators are hired by the Ingham County FOC as permanent employees. When they act as mediators, this is in contradiction to the Michigan Court Rules. MCR 3.216 "Domestic Relations Mediation". It says in part: Rule 3.216 Domestic Relations Mediation (A) Scope and Applicability of Rule, Definitions. (1) All domestic relations cases, as defined in MCL 552.502(h), are subject to mediation under this rule, unless otherwise provided by statute or court rule. (2) Domestic relations mediation is a nonbinding process in which a neutral third party facilitates communication between parties to promote settlement. If the parties so request, and the mediator agrees to do so, the mediator may provide a written recommendation for settlement of any issues that remain unresolved at the conclusion of a mediation proceeding. This procedure, known as evaluative mediation, is governed by subrule (I). ... (B) Mediation Plan. Each trial court that submits domestic relations cases to mediation under this rule shall include in its alternative dispute resolution plan adopted under MCR 2.410(B) provisions governing selection of domestic relations mediators, and for providing parties with information about mediation in the family division as soon as reasonably practical. ns.pdf The rules about selection of domestic relations mediators help to ensure that as many mediators as possible are selected randomly so that the participants know that those mediators are neutral. Lets look at MCR 2.410, which says in part: Rule 2.410 Alternative Dispute Resolution (A) Scope and Applicability of Rule; Definitions. (1) All civil cases are subject to alternative dispute resolution processes unless otherwise provided by statute or court rule. (2) For the purposes of this rule, alternative dispute resolution (ADR) means any process designed to resolve a legal dispute in the place of court adjudication, and includes settlement conferences ordered under MCR 2.401; case evaluation under MCR 2.403; mediation under MCR 2.411; domestic relations mediation under MCR 3.216; and other procedures provided by local court rule or ordered on stipulation of the parties. (B) ADR Plan. (1) Each trial court that submits cases to ADR processes under this rule shall adopt an ADR plan by local administrative order. The plan must be in writing and available to the public in the ADR clerk's office.

(2) At a minimum, the ADR plan must: (a) designate an ADR clerk, who may be the clerk of the court, the court administrator, the assignment clerk, or some other person; (b) if the court refers cases to mediation under MCR 2.411, specify how the list of persons available to serve as mediators will be maintained and the system by which mediators will be assigned from the list under MCR 2.411(B)(3); (c) include provisions for disseminating information about the operation of the court's ADR program to litigants and the public; and (d) specify how access to ADR processes will be provided for indigent persons. If a party qualifies for waiver of filing fees under MCR 2.002 or the court determines on other grounds that the party is unable to pay the full cost of an ADR provider's services, and free or low-cost dispute resolution services are not available, the court shall not order that party to participate in an ADR process. (3) The plan may also provide for referral relationships with local dispute resolution centers, including those affiliated with the Community Dispute Resolution Program. (4) Courts in adjoining circuits or districts may jointly adopt and administer an ADR plan. Because only Conciliators act as mediators for parties in domestic relations matters, there is no ADR plan for domestic relations mediation. Most likely, conciliators are assigned to a judge, and the same Conciliator is always selected for the same judge. All of the rules regarding mediation are then ignored, and participants should be very wary of mediator bias, given that the rules to ensure that mediator bias does not exist are ignored and the court has a financial conflict of interest that may encourage it to seek mediators which maximize Title IV-D funding, by, for example, discouraging parents who would otherwise agree on joint physical custody from making that arrangement, or leaking information obtained in mediation in a recommendation to the court to force the parents not to jointly share physical custody, if they have a personal bias against joint physical custody. What can a parent do? They can object to mediation under MCR 2.4.10 and request that the Chief Judge ensure that the ADR plan is both in place and properly followed: (E) Objections to ADR. Within 14 days after entry of an order referring a case to an ADR process, a party may move to set aside or modify the order. A timely motion must be decided before the case is submitted to the ADR process.( .... F) Supervision of ADR Plan. The chief judge shall exercise general supervision over the implementation of this rule and shall review the operation of the court's ADR plan at least annually to assure compliance with this rule. In the event of noncompliance, the court shall take such action as is needed. This action may include recruiting persons to serve as ADR providers or changing the court's ADR plan. If someone has successfully done this at the Ingham County FOC, I am not aware of it. Another option is to offer up a mediator under MCR 2.4.11:

(1) The parties may stipulate to the selection of a mediator. A mediator selected by agreement of the parties need not meet the qualifications set forth in subrule (F). The court must appoint a mediator stipulated to by the parties, provided the mediator is willing to serve within a period that would not interfere with the court's scheduling of the case for trial. In this case, I would offer a minister or other respected and neutral person to act as a mediator. I think that it's just straightforward to send a return receipt requested letter, keeping a certified copy, specifying the court rule to the other parent, and asking him/her to agree to one of a list of mediators. These would include ministers and other neutral and respected members of the community. Another option is to move to disqualify the mediator under MCR 2.4.11: (4) The rule for disqualification of a mediator is the same as that provided in MCR 2.003 for the disqualification of a judge. The mediator must promptly disclose any potential basis for disqualification. All of these rules appear to me to apply to Conciliators when exercising their duties as mediators. The Ingham county FOC also gives Conciliators the power to make enforceable recommended orders: If this is a new case, the Court will immediately enter the conciliator's recommendation as a temporary order. If either party objects to that recommended order, they may have a referee hearing by filing objections within 14 days after they receive the order. Again, this is a power that the FOC Act only grants to a referee (MCL 522.507 Section 7 Paragraph 7): (7) Pending a de novo hearing, the referee's recommended order may be presented to the court for entry as an interim order as provided by the Michigan court rules. The interim order shall be served on the parties within 3 days and shall be subject to review as provided under this subsection. Referees are also subject to tons of court rules that Conciliators can ignore. MCR 3.215. Referees must be a member of the State Bar of Michigan. Referees are required to handle motions in a timely manner (14 days). Referees must obey the rules of evidence. Referees must explain the rights of parties to obtain a judicial hearing. Referees must maintain an electronic or stenographic recording of hearings. Referees must allow contemporaneous electronic recordings and provide transcripts upon request. Referees must make a statement of findings on the record or enter a written statement of finding within 21 days, with proof of service. Referees must find facts and show the laws

they applied. Notices for judicial hearings to inform parties of their rights. Allow written recommendations to the accuracy and completeness of that recommended order within 7 days. This also sets up the referee as an appellate court, when the referee is the person you're supposed to meet with in the first place! You have to jump through so many hoops to get to a real judge. Please also note the lack of Conciliators, their recommended orders, etc in the Michigan Court Rules. They don't exist. The Ingham FOC also offer "binding mediation": The parties may agree to binding mediation, or arbitration, which may be conducted either by an individual or by a panel. ... If the arbitrator's decision is not vacated it will be enforced by the Court in the same way as any other order of the Court. There is a provision for "evaluative mediation" under the law, but not for binding mediation. Offering such mediation may be perceived as a coercive act on the part of the court. They also fail to offer evaluative mediation (where there is a recommendation, but no one sees it but the parties unless they agree to it)