Presentation Transcript

1. Custody and Parenting Time

   Susan R. Harvey Assistant Prosecuting Attorney Oakland County
2. What is the role of the Prosecutor’s Office in custody and parenting time?
3. The Law in Paternity Cases (DP) MCL 722.717b Order of Filiation, provisions for custody or parenting time If the court makes a determination of paternity and there is no dispute regarding custody, the court shall include in the order of filiation specific provisions for the custody and parenting time of the child as provided under the child custody act of 1970. If there is dispute between the parties concerning custody or parenting time, the court shall immediately enter and order that establishes support and temporarily establishes custody of and parenting time with the child. Pending a hearing on or other resolution of the dispute, the court may also refer the matter to the friend of the court for a report and recommendation as provided in section 5 of The Friend of the Court Act…being section 552.505 of the Michigan Compiled Laws. In a dispute regarding custody or parenting time, the prosecuting attorney, an attorney appointed by the county, or an attorney appointed by the court under section 4 shall not be required to represent either party concerning the dispute.
4. The Law in Support Cases (DS) MCL 552.452 (4) Family Support Act If there is no dispute regarding a child’s custody, the court shall include in an order for support issued under this act specific provisions governing custody of and parenting time for the child in accordance with the child custody act of 1970… If there is dispute regarding custody of and parenting time for the child, the court shall include in an order for support issued under this act specific temporary provisions governing custody of and parenting time for the child. Pending a hearing on or other resolution of the dispute, the court may refer the matter to the office of the friend of the court for a written report and recommendation as provided in section 5 of the friend of the court act…MCL 552.505. In a dispute regarding custody of and parenting time, the prosecuting attorney is not required to represent either party regarding the dispute.
5. Process by Case Clerk Receive CAR Put Legal Case Information Worksheet and IV-D notes into a hard file Determination as to case type Check Central Paternity Registry (CPR)
6. Process by Paralegal Mail out questionnaire Questionnaire unique to case type Support case (DS) Paternity case (DP) Guardian case Once questionnaire returned, interview of custodial parent (CP)
7. Support (DS) and Paternity (DP) cases Paralegal interview Does questionnaire indicate PPO, DV or confidential address? Brief description of physical and legal custody Brief description of parenting time Explain reasonable parenting time Explain reserved parenting time CP asked the following questions: “What is your current parenting time arrangement?” “Number of overnights child (ren) spend with noncustodial parent (NCP) each month?” “Have you discussed custody and parenting time with NCP?”
8. NCP office appointment CP’s custody and parenting time position presented to NCP NCP agrees and signs consent judgment NCP files answer, motion for parenting time, or counter complaint for custody CP advised by letter that we will not represent her on custody or parenting time disputes. Legal Aid information given
9. OAKLANDCOUNTYPROSECUTINGATTORNEY JESSICAR.COOPER Telephone:(248)858-0715 Fax:(248)452-9994 1200NTelegraphRdPontiac,Ml48341 DavidG.Case FamilySupportDivision DearMs. Smith Enclosedpleasefindthe AnswertotheComplaintforyourrecords.PleasenotethattheOaklandCountyProsecutor'sOffice,FamilySupportDivision,doesnotrepresentyou forcustodyand/orparentingtimeissues.Istronglyrecommendthatyou seeklegalcounsel to representyouinthesematters. Foryourinformation,thereareseveralfreelegalresourcesforlow incomeindividuals,whichmightbeavailabletoyou: LegalAidmaybereachedat(248)253-1548. CommonGroundholdstheirlegalaidclinicintheOaklandCountyLaw Library,1200NTelegraphRdPontiacMl48341,everyThursdayfrom11:00a.m.to1:00p.m.Individualsmaycomeforafreeconsultationwithalicensedattorneyonanylegal matter. Attendees may register intheLaw Librarybefore12:30p.m.onthedaythattheyareattending. Participationisonafirstcome,firstservedwalk-in basis.Formoreinformationonthislegalaidclinic,please contactCommonGroundat(248)451-3753. TheFamilyLawAssistanceProject(F.L.A.P.)holdstheirlegalaidclinicintheOakland CountyLawLibrary,1200NTelegraphRdPontiac Ml48341,every otherWednesdayfrom1:00p.m.to 4:00p.m.Fordetailedinformation,pleasecontactF.L.A.P.at(248)335-0125,orvisithttp://www.oakgov.com/boclib/events/familylaw.html. TheOaklandCountyProsecutor'sOffice,FamilySupportDivision,willcontinuetohandleanylegalmattersthatwouldaffect theamountofchild supportorderedbytheCourt.Ifyoushouldhaveanyquestions,pleasecall(248)858-5623. Sincerely, Susan R Harvey Assistant Prosecuting Attorney
10. Guardian/Grandparent/Foster Care Interview of Guardian or Grandparent Legal status determined How long child(ren) in CP care? Any changes anticipated? Upcoming court dates ? Plans to file for a guardianship if one does not exist? Placement through foster care? Custody and Parenting time reserved in order
11. UIFSA Complaint (UE) No questionnaire mailed out No contact with CP CP in other state Intake form completed base on general testimony received from initiating state
12. UIFSA Complaint (UI) No questionnaire mailed out CP in Michigan CP comes into office for interview with paralegal CP completes general testimony and for paternity cases, affidavit in support of establishing paternity
13. When case goes to court…
14. DS/DP Assistant prosecuting attorney (APA) speaks with CP concerning custody and parenting time Explain CP represents himself/herself on custody and parenting time issues If no dispute, can proceed today If dispute, may require Friend of the Court (FOC) order of reference and/or court hearing Parties may hire private attorneys or seek Legal Aid attorney Any history of domestic violence or PPO?
15. Resolving Custody Parenting Time APA explains physical and legal custody What is current custody, parenting time arrangement? What are NCP’s current overnight’s with child? What is NCP seeking concerning custody, parenting time in his answer? Do parties want a spelled out parenting time plan or a more liberal plan?
16. NCP Speak with NCP about same issues Negotiate custody, parenting time between two parties
17. Custody Provisions 100 mile rule in joint legal custody MCL 722.31(1) Domicile provision MCR 3.211(C)(1) Hague convention provision MCL 722.27a(9)
18. The Law/100 Mile Rule MCL 722.31 (1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of commencement of the action in which the order is issued.
19. The Law/Domicile MCR 3.211 (C) A judgment or order awarding custody of the minor child must provide that (1) the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge’s successor.
20. The Law/Hague Convention MCL 722.27a (9) Except as provided in this subsection, a parenting time order shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague convention on the civil aspects of international child abduction. This subsection does not apply if both parents provide the court with written consent to allow a parent to exercise parenting time in a county that is not a party to the Hague convention on the civil aspects of international child abduction.
21. Goal of parenting time For the child to have a strong relationship with both parents MCL 722.27a Look at duration, frequency, and type of parenting time Safety of child Physical, mental and emotion health of the child (ren)
22. Things to Consider Child under age one Child special needs Transportation Distance of parties, burdensome impact on child Supervised parenting time plan Graduated parenting time plan
23. Parenting Time Problems Bringing significant other to court Bringing CP or NCP’s parents to court The Unrealistic CP The Unrealistic NCP The Righteous Attorney
24. Wrap it up Final Order Order of Reference to FOC Small issues in front of Judge Set case for custody, parenting time trial