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Otsego County Friend of the Court 800 Livingston Blvd., Suite 1A, Gaylord, MI 49735 Phone: (989) 731-7450 Fax: (989) 731-0226 www.otsegocountymi.gov Opting Out of Friend of the Court Services By using this form packet, you are representing yourself in a court action regarding opting out of Friend of the Court services. In order to receive the action you seek, you must follow the instructions in this packet. Failure to complete ALL of the required steps, may result in a delay of your case and/or the Court being unable to grant you the relief that you are requesting. THE FRIEND OF THE COURT DOES NOT REPRESENT EITHER PARTY AND IS PROHIBITED FROM PROVIDING LEGAL ADVICE This packet includes: • Advice of Rights form (FOC 101) • Motion to Opt Out of FOC Services and Notice of Hearing (CC 326) • Proof of Mailing (MC 302) • Application for IV-D Services (DHS-1201D) • Notice Regarding Filing Fees • Order Exempting Case from FOC Services (FOC 102) For the Court to consider a request to exempt a case from Friend of the Court services (opting out), a motion must be filed and scheduled for hearing. The motion can be filed at any time prior to a judgment entering or after a judgment has entered. Both parties must sign the Advice of Rights Regarding Use of Friend of the Court Services and attach the form to the motion. See the instructions included in this packet on how to file and serve the motion. Opting Out BEFORE a Friend of the Court Case is Opened: If the parties have filed a new domestic relations case and a motion to opt out, the Court must approve the motion and enter an order, unless the Court determines that one or more of the following conditions are true: • A party is eligible for Title IV-D services because of the party’s current or past receipt of public assistance. • A party applies for Title IV-D Services. • A party requests the Friend of the Court to open and maintain a Friend of the Court case even though the party may not be eligible for Title IV-D services because the domestic relations matter involves, by way of example and not limitation, spousal support only, child custody, parenting time or child custody and parenting time. ---PAGE BREAK--- • There exists evidence of domestic violence or uneven bargaining positions and evidence that a party has chosen not to apply for Title IV-D services against the best interest of either the party or the party’s child. • The parties have not filed an Advice of Rights form listing Friend of the Court services and an acknowledgement that the parties are choosing to do without those services. 1. At the hearing, the Referee will determine whether the qualifications to opt out of Friend of the Court services have been met. If the Court determines that the case may be exempt from Friend of the Court services, the Court will enter the order exempting the case. 2. The 46th Circuit Court requires the Friend of the Court to prepare an informational recommendation for support based upon the Michigan Child Support Formula in all cases, even if you are intending to opt out of Friend of the Court services. This information will be needed when preparing your final judgment even if you and the other party agree to no support or an amount of support that differs from the recommendation (which is considered a deviation from the child support formula). If you deviate from the formula, you will be required to explain, in detail, in the Uniform Support Order, your reason(s) for the deviation and the support amount determined on the child support formula. Note that any amount agreed upon that is different than the support formula including $0 would be considered a deviation. The Court will make the final determination concerning the deviation of support based on the factors set forth in the child support formula. 3. The Friend of the Court will mail a Case Questionnaire to both parties. The Questionnaire must be completed, signed and returned along with copies of your last four pay stubs. If a party is self-employed, copies of the last three years of personal and business tax returns, including all schedules, W-2 and 1099 forms must be included. Because the child support formula includes the number of parenting time overnights each party has in a calendar year, an Overnight Parenting Time Verification form will be included to complete and return. In addition, the enclosed IV-D Application for Services must be signed and returned. This enables the Friend of the Court to prepare the recommendation as part of its statutorily required duties. Failure to return any of the above-referenced documents could result in a delay of your case. 4. An informational recommendation will be prepared and sent to both parties and any attorneys of record. If the Plaintiff is unrepresented in a divorce case, a Judgment of Divorce packet and a Uniform Support Order (USO) Form (FOC 10a) and, if appropriate, a Deviation Addendum Form (FOC 10d) must be completed and attached to your Judgment of Divorce. If you are seeking spousal support, a Uniform Spousal Support Order Form (FOC 10c) must be attached to your Judgment of Divorce. This can be obtained by accessing the Michigan Supreme Court website via the following link: 5. If a Motion to Opt Out was not filed at the time the initial Complaint was filed and: Your final hearing is scheduled; You have received a recommendation for support from the Friend of the Court, or a temporary support order has already entered and; ---PAGE BREAK--- Both parties wish to opt out of Friend of the Court services; the Motion to Opt Out of Friend of the Court services and Notice of Hearing, Advice of Rights form and Proof of Mailing must be filed with the Clerk of the Court (225 W. Main St., Gaylord, MI 49735), after copies have been served on the other party and the Friend of the Court. See instructions on next page on how to file and serve the motion. A hearing date/time can be obtained from the Judicial Assistant (Judge Hunter – (989) 344-3271; Judge Mertz (989) 731-0224). You should request that your Motion to Opt Out be scheduled for the same date/time as your final hearing. NOTICE You must submit your proposed Judgment of Divorce and Uniform Support Order for approval to the Friend of the Court office at least 30 days before your final judgment hearing. The Judge may not approve/sign your Judgment of Divorce unless it has been approved by the Friend of the Court in advance. Your divorce could be delayed if you are deviating from the child support formula and the Friend of the Court has not received the necessary information to prepare a recommendation for support. Opting Out AFTER a Final Judgment Has Entered: If the parties have an existing domestic relations case and a Motion to Opt Out is filed, the Court must approve the motion and enter an order, unless the Court determines that one or more of the following conditions are true: • A party to a Friend of the Court case objects. • A party is eligible for Title IV-D services because the party is receiving public assistance. • A party is eligible for Title IV-D services because the party received public assistance and an arrearage is owed to the State of Michigan. The Friend of the Court records show that, within the previous 12 months, a child support arrearage or custody or parenting time violation has occurred in the case. • Within the previous 12 months, a party has reopened a Friend of the Court case. • There exists evidence of domestic violence or uneven bargaining positions and evidence that a party has chosen to close the case against the best interest of either the party or the party’s child. A Motion to Opt Out of Friend of the Court services must be filed and the Advice of Rights form signed by both parties. See the instructions below on how to file and serve the motion. The Court will make a determination based upon the factors outlined above. If the Court grants the Motion to Opt Out, the Court will prepare the order exempting the case. ---PAGE BREAK--- Completing the Motion The Motion form (CC 326) must be completed in its entirety. It may be helpful to have previously filed court papers available to assist you. The case number, and party information will be listed on previous documents. If you do not know your case number, please contact the Friend of the Court office. Please print neatly. If your handwriting is not legible, the form may be rejected. • The Motion title should be “Motion to Opt Out of the Friend of the Court Services. • You are the Moving Party. Place your name on line 2. • Before completing the “Notice of Hearing” portion, contact the Friend of the Court Scheduling Clerk at (989) 731-7462. You will need to provide your name and phone number, the other party’s name and your case number. Fill in the form with the name of the Judge or Referee who will be hearing your motion, the date of the hearing, the time of the hearing (include whether it is a.m. or and the place of the hearing. Note: All Referee Hearings will be held virtually, via Zoom. Zoom information (attached) must be included with the Notice of Hearing that is sent to the opposing party. Failure to attend the hearing may result in your Motion to Opt Out being dismissed. • Under “Motion” describe in detail, why you are requesting to opt out of Friend of the Court services. Attach a separate sheet, if necessary. • Date and sign the form. Filing and Serving the Motion 1. Make three copies of the Motion (CC 326) and any attachments (one for you, the other party and the Friend of the Court). If there are attorneys of record or a third party/guardian, make additional copies. 2. Mail a copy of the motion with attachments to the other party and, if appropriate, attorneys of record or third party/guardian by first class mail. The mailing date must be at least 9 business days (not including holidays) prior to the hearing date. 3. Complete the Proof of Mailing (MC 302), by signing and writing the date that you mailed copies to the other party(ies). 4. File the original and Friend of the Court copy of the Motion (with attachments), Notice of Hearing and Proof of Mailing with the County Clerk’s office located at 225 West Main Street, Gaylord, Michigan 49735. Note: A filing fee of $20.00 will be required at the time of filing. Payment may be made with credit card, cash or check or money order (made payable to Otsego County Clerk). ---PAGE BREAK--- If you can’t afford to pay the fees, you may submit an Affidavit and Order – Suspension of Fees and Costs (Form MC 20). This form can be obtained from the Friend of the Court or County Clerk’s office. If the Affidavit is approved by the Court, your filing fee may be waived. Reopening a Case With the Friend of the Court A party may elect to reopen their Friend of the court case at any time. A form packet that contains the necessary forms and information to reopen your case is available from the Friend of the Court office or on our website: www.otsegocountymi.gov/274/forms. Contact the Friend of the Court office at (989) 731-7450 or the County Clerk’s office at (989) 731-7500 if you have any questions regarding the instructions for filing and serving your motion. ---PAGE BREAK--- FOC 101 (3/13) ADVICE OF RIGHTS REGARDING USE OF FRIEND OF THE COURT SERVICES, PAGE 1 Approved, SCAO STATE OF MICHIGAN JUDICIAL CIRCUIT COUNTY ADVICE OF RIGHTS REGARDING USE OF FRIEND OF THE COURT SERVICES (PAGE 1) Friend of the court address Telephone no. MCL 552.505, MCL 552.505a Original - Court (to be filed with motion) 1st copy - Plaintiff 2nd copy - Defendant 1. Right to Refuse Friend of the Court Services a. You have the right to refuse friend of the court services for custody, parenting time, and support. To decline friend of the court services, you must file with the court a motion requesting that friend of the court services not be required. You must attach a signed copy of this advice of rights to the motion. The court will grant the motion provided both parties agree and have signed this advice of rights and it determines that all the following are true. 1) Under MCL 552.505a, neither of you receives or has received public assistance or requests friend of the court services. 2) There is no evidence of domestic violence or of an uneven bargaining position between you. 3) The court finds that declining to receive friend of the court services is not against the best interests of a child. b. If you already have a friend of the court case, you can file a motion to discontinue friend of the court services provided both parties agree and have signed this advice of rights and the court finds that all the following are true. 1) Neither of you receives public assistance or requests friend of the court services. 2) There is no evidence of domestic violence or an uneven bargaining position between you. 3) The court finds that declining to receive friend of the court services is not against the best interests of a child. 4) No money is due the governmental entity because of past public assistance. 5) No arrearage or violation of a custody or parenting-time order has occurred in the last 12 months. 6) Neither of you has reopened a friend of the court case in the last 12 months. 2. Friend of the Court Services (you will not receive these services if you choose not to use the friend of the court) a. Accounting Services Friends of the court must collect support and disburse it within 48 hours. Friend of the court accounting services include: 1) friend of the court accounting for payments received and sent, 2) adjustments of support for parenting time or other credits, and 3) annual statements of accounts, if requested. b. Support Enforcement Services The friend of the court must begin to enforce support when one month of support is overdue. For friend of the court cases, child-support enforcement services include: • paying support out of tax refunds. • asking the court to order the nonpaying party to come to court to explain the failure to pay. • having unpaid support paid out of property the payer owns. • reporting support arrearage to a consumer reporting agency or requesting that the payer’s license(s) be suspended. • collecting support by an income withholding order. If you choose not to receive friend of the court services, any existing income withholding source will be notified that the friend of the court is no longer responsible for income withholding. The parties will be solely responsible for stopping or changing income withholding as the law allows. The friend of the court will stop any unfinished collection actions. c. Medical Support Enforcement Services The friend of the court is required to recommend how the parents divide health-care expenses and to take action to collect the amounts that a parent fails or refuses to pay. When a parent is required to insure the children, the friend of the court is authorized to instruct an employer to enroll the children in an insurance plan when the parent fails or refuses to do so. d. Support Review and Modification Services Once every three years, persons with friend of the court cases may request the friend of the court to review the support amount. After completing the review, the friend of the court must file a motion to raise or lower support, or inform the parties that it recommends no change. It must also review support when changed circumstances lead it to believe that support should be modified. e. Custody and Parenting-Time Investigation Services For disputes about custody or parenting time in friend of the court cases, the friend of the court sometimes must investigate and provide reports to the parties and the court. f. Mediation Services Friend of the court offices must provide mediation services to help parties with friend of the court cases settle custody and parenting-time disputes. g. Custody and Parenting-Time Enforcement Services For friend of the court cases, the friend of the court must enforce custody and parenting time when a party complains that it is violated. Child-custody and parenting-time enforcement services include: CASE NO. (See page 2) ---PAGE BREAK--- 2. Friend of the Court Services (you will not receive these services if you choose not to use the friend of the court) (continued from page 1) g. Custody and Parenting-Time Enforcement Services (continued from page 1) • asking the court to order the noncooperating party to come to court to explain the failure to obey the parenting-time order. • suspending the licenses of individuals who deny parenting time. • awarding makeup parenting time. • joint meetings to resolve complaints. 3. Michigan State Disbursement Unit and IV-D Services a. Michigan State Disbursement Unit (MiSDU) If you choose not to receive friend of the court services, you may continue to make and receive child support payments through MiSDU. MiSDU will keep track of the amount paid and sent out. However, MiSDU cannot provide you with all the accounting functions the friend of the court provides. All payments made through MiSDU must be distributed according to the amounts due as required by federal law. When a payer has more than one case, federal law determines how a payment is divided among the cases. Even if you choose not to receive friend of the court services, payments through MiSDU must be divided among all a payer’s cases and distributed in the same manner as payments on friend of the court cases. You cannot discontinue friend of the court services if you want to use MiSDU unless you first provide to MiSDU all the information that MiSDU needs to set up an account. b. Your Rights Under Title IV-D of the Social Security Act Title IV-D of the Social Security Act provides federal government resources to collect child support and it allows certain funding to be used for parenting-time and custody services. In Michigan, critical Title IV-D services are delivered by the friend of the court. If you choose not to receive friend of the court services, you cannot receive most Title IV-D services. 4. Public Assistance Receipt of public assistance means receipt of any of the following benefits: cash assistance, medical assistance, food assistance, foster care, and/or child care. ACKNOWLEDGMENT REGARDING SERVICES Check below only if you do not want to receive friend of the court services. Then date, print name, and sign. I have read this advice of rights and I understand the friend of the court services I am entitled to receive. I acknowledge that by signing below I am choosing not to receive any friend of the court services. I understand that before this choice can take effect, a motion requesting this choice and the other party's agreement must be filed with the court for approval. I also understand that the court may deny this choice if certain conditions are not met as stated in this advice of rights. If you did not check the above box, you are choosing to receive friend of the court services. For the most effective friend of the court services, you can request Title IV-D services by dating and signing below. I request Title IV-D services through the friend of the court office. Signature Signature Date Signature Date Date Name (type or print) Name (type or print) Approved, SCAO STATE OF MICHIGAN JUDICIAL CIRCUIT COUNTY ADVICE OF RIGHTS REGARDING USE OF FRIEND OF THE COURT SERVICES (PAGE 2) Friend of the court address Telephone no. Original - Court (to be filed with motion) 1st copy - Plaintiff 2nd copy - Defendant CASE NO. FOC 101 (3/13) ADVICE OF RIGHTS REGARDING USE OF FRIEND OF THE COURT SERVICES, PAGE 2 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---