Proposed SCAO-Approved Court Forms

The following forms and issues will be presented to the Michigan Court Forms Committee at its upcoming meeting and are published for a 30-day comment period to elicit input for discussion by the committee. All comments received during the comment period will be included in the committee's agenda materials and mailed to committee members two weeks before the scheduled meeting.

The meeting schedule of the Michigan Court Forms Committee for 2010 is as follows:

• Circuit and District Court Section (includes domestic relations) - Thursday, March 4, 2010
• Friend of the Court Section - Thursday, March 18, 2010
• Probate Court Section - Thursday, September 2, 2010
• Family Division of Circuit Court Section - Thursday, September 16, 2010

Comments may be made by mailing a written letter to SCAO-Approved Court Forms at PO Box 30048, Lansing, Michigan 48909 or by sending an e-mail to CourtFormsInfo@courts.mi.gov. Inquiries may be made by telephoning the Forms Unit at 517-373-4864.

Proposals for September, 2009

Proposals for Probate Court Section
        Published July 17, 2009
          Comment Period Expires August 17, 2009

General and Estate Forms

New Form, Petition on Denial of Application for Delayed Registration of Birth and Order: This form is being developed for use with DCH-1031, Application to Establish Delayed Registration of Birth by Court Order. The proposed draft was designed in cooperation with the Michigan Department of Community Health, Vital Records & Health Data Services Section. The MDCH has asserted the form will make the process for establishing a delayed record easier, more accurate, and more complete. The controlling statutes are MCL 333.2827 and MCL 333.2828.

According to the MDCH, a person may go to the Vital Records Office to establish a delayed record of birth but, if the documentation is insufficient, the office can deny the application. The person may then go to court to establish the delayed record of birth. There is concern with this process because the establishment of a birth record is a way to help individuals create new citizenship documentation, thereby creating a new identity. This is especially a concern after September 11, 2001, and the MDCH wants to prevent this from occurring.

The MDCH seeks to develop a formal procedure that will clearly show the court: (1) the documentation submitted to the MDCH; (2) the documentation not considered acceptable by the MDCH; and (3) the specific facts of birth that still need to be established by the court. The MDCH further believes it would better serve the petitioner if the documentation given to the court is listed on the form. The MDCH would like the petitioner to also list the documentation submitted to the court that the MDCH did not receive. In addition, the letter of denial from the MDCH would set forth the documentation the department did not receive, thereby making it easier for the court to determine the acceptability of the documents.

According to the MDCH, it is extremely important to understand what type of documentation was accepted by the court to establish the fact of birth that the petitioner was not able to establish with the MDCH. This explains why there are two areas on the draft form that list documentation (one for the documents the registrant submits, and one for the documents the court accepts) and the presentation of facts of birth (one for the facts the registrant wants, and one for the facts the court orders).

Attached is a proposed draft form that replaces DCH-1031.

MC 304, Order Regarding Alternate Service: The Circuit and District Section of the Michigan Court Forms Committee recently approved a request to expand this form for use under MCR 2.107(B)(1)(b). See the attached meeting minutes for the revisions made by the Circuit and District Section . After agreeing to the changes, the committee referred the revisions to the Probate Section for further discussion. If the Probate Section makes additional changes, the form will be referred back to the Circuit and District Section for its final review in 2010. Are the changes agreed upon by the Circuit and District Section acceptable? Do further revisions need to be made? See the current form.

MC 307, Order for Service by Publication/Posting and Notice of Action: The SCAO suggests this form can be used in civil cases filed in the probate courts and recommends that “County Probate” be added to the masthead and that MCR 5.101(C) be added to the citations at the bottom of the form. See the current form.

PC 558, Application for Informal Probate and/or Appointment of Personal Representative (Testate/Intestate):  A probate court administrator has requested the language in item 7 be reviewed because the second sentence appears to presume there is a will/codicil. It is asserted this statement may need to be conditional rather than presumptive. See the current form.
Comments Received:
     Janie Diegel

PC 559, Petition for Probate and/or Appointment of Personal Representative (Testate/Intestate): A probate court administrator has requested the language in item 10 be reviewed because the second sentence appears to presume there is a will/codicil.  It is asserted this statement may need to be conditional rather than presumptive. See the current form.
Comments Received:
     Janie Diegel

PC 564, Proof of Service: The committee is asked to discuss whether the newly-designed proof of service fee box that has been applied to all circuit, district, and friend of the court forms should be applied to this form. The redesigned fee box provides a field for an incorrect address fee, which was requested by the Michigan Court Officer, Deputy Sheriff and Process Servers Association. See MC 230 for an example of the redesigned fee box . See the minutes from the 2009 Circuit and District Section meeting. See the current form.

PC 565, Testimony, Interested Persons: The Council of the State Bar Probate and Estate Planning Section has requested the form’s title be changed to “Testimony to Identify Heirs” because MCR 5.302(B) has been amended, effective May 1, 2009, and now states that “[a]t least one sworn testimony form sufficient to establish the identity of heirs and devisees must be submitted …” (new language in bold).  Previously, the court rule referred to “interested persons.” See the attached e-mail.

Similarly, a probate register has suggested the form be reviewed for compliance with an amendment to MCR 5.125(B)(5) that added a new definition to “interested persons.” See the current form.
        
PC 566, Supplemental Testimony, Interested Persons: The Council of the State Bar Probate and Estate Planning Section has requested the form’s title be changed to “Supplemental Testimony to Identify Non-Heir Devisees” because MCR 5.302(B) was amended, effective May 1, 2009, and now states that “[a]t least one sworn testimony form sufficient to establish the identity of heirs and devisees must be submitted  …” (new language in bold). Previously, the court rule referred to “interested persons.” See the attached e-mail.

Similarly, a probate register has suggested the form be reviewed for compliance with an amendment to MCR 5.125(B)(5) that added a new definition to “interested persons.” See the current form.
 
PC 574, Notice to Creditors, Decedent’s Estate: An attorney has suggested that it may not be prudent to publish the decedent’s street address for privacy reasons. It is asserted that it may be sufficient to provide an address for the personal representative at the lawyer’s business office, if a lawyer is involved. MCL 700.3801 does not require the decedent’s address be listed on the creditor notice, but the statute does say that a personal representative shall publish notice “as provided by supreme court rule ….”  MCR 5.306(A)(1) says the notice to creditors must include:  “(1) The name, and, if known, last known address, date of death, and date of birth of the decedent ….” See the attached communications. Is it necessary to publish the decedent's street address on the form? Or, if a lawyer is involved, can the address of the lawyer's business office be provided (on behalf of the personal representative)? If a lawyer is not involved, what information should be provided? See the current form.
Comments Received:
      Cindy Rude

PC 577,  Inventory: The Council of the State Bar Probate and Estate Planning Section has suggested the references to guardians and conservators be deleted because they are “outdated.”  It has been asserted that, due to the development of  PC 674 (Inventory, Conservatorship), all references to conservators and guardians on the estate inventory form and instructions should be removed. The council has proposed that the two checkboxes at the top of the form be removed. The council has also asserted that (1) items 2.c. and 3.e. in the instructions should be deleted and (2) the form's title should be changed to "Inventory, Decedent's Estates," to avoid confusion with PC 674. See the attached e-mail. See the current form. See PC 674.  

PC 584, Account of Fiduciary, Long Form: A probate court administrator has suggested the column headings on Schedule C be changed to make it clear assets that have not been sold cannot be depreciated on this form. See the current form.

PC 591, Sworn Statement to Close Unsupervised Administration: MCL 700.3954 provides that a personal representative may close an estate by filing with the court a sworn statement, indicating that the personal representative or a previous personal representative has done several things, including “(c) Sent a copy of the statement to all estate distributees and to all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred.” While item 6 on the form includes this statutory requirement, it is questioned whether the current language on the form makes practical sense. Will the personal representative send a copy of the sworn statement at the same time he or she is completing the sworn statement form? A probate court administrator has suggested that item 6 be changed to say (new language in bold):  “I will send copies of this sworn statement to all distributes and to all claimants whose claims are neither paid nor barred and to all demandants. …”  In light of this recommendation, should a standard certificate of mailing be added to the form?

In addition, a probate court administrator has requested the language in item 2 be revised to make it clearer that notice has been published, if required by law. The committee did make it clearer in September 2006 by saying, “If required by law or court rule, I have published notice to creditors, and the time for presentment of claims has expired.” The committee considered the form again in 2007, but the incorrect version of the form (3/06) was reviewed. As a result, the committee revised the language to say, “I have published notice to creditors when required by law and the time for presentment of claims has expired,” thereby reverting to the same language that was on the 3/06 version. Will the language on the 9/06 version suffice? The 9/06 version is provided. See the current form.

PC 595, Order for Complete Estate Settlement: It has been questioned whether the language “and the bond, if any, is cancelled” should be deleted in item 15 because discharge of the personal representative and cancellation of the bond typically occur at the same time. See the current form.
     
PC 600, Notice of Deficiency: A probate register has suggested the fifth checkbox option, Notice of Continued Administration, that was on the 3/00 version of this form be reinstated on the current form. It provided:  “□ Your ‘Notice of Continued Administration’ (form PC 587) has not been filed. The court will administratively close the estate and terminate the authority of the personal representative unless you file within 63 days your Notice of Continued Administration, or your ‘Sworn Statement’ (form PC 591), or ‘Petition for Complete Estate Settlement’ (form PC 593, or ‘Petition for Adjudication of Testacy and Complete Estate Settlement’ (form PC 594), or ‘Petition for Settlement Order.’ It must be filed with the filing fee, if required.” It is asserted that continued administration happens regularly and, therefore, this checkbox option should be reinstated. Based on the current court rule and statute, MCR 5.203 and MCL 700.3951, should the Notice of Continued Administration checkbox option that was on the 3/00 version be reinstated? See the current form. 
Comments Received:
     Janie Diegel
     Cindy Rude

PC 603, Petition and Order for Reinstatement (Estate Not Closed): This form is currently designed for use in decedent's estates only. A probate court administrator has suggested the form be redesigned for use with both decedent's estates and conservatorships. A draft is provided. See the current form.
     Cindy Rude

PC 604,  Petition for Removal of Personal Representative and Appointment of Successor (Estate Not Closed) and New Form, Application for Appointment of Successor Personal Representative (Estate Not Closed): The Council of the State Bar Probate and Estate Planning Section has requested that PC 604 be revised to include information relating only to a petition to remove a personal representative and appoint a successor representative, and that a new form be developed for use in situations where a personal representative's appointment has been terminated by death, conservatorship, or resignation. It is asserted that MCL 700.3301(1)(f), 700.3609, 700.3610, 700.3611(2), and 700.3614(a) of the Estate and Protected Individuals Code, as well as MCR 5.204, indicate that, in these cases, the appointment of a successor personal representative is to be made informally by application. It has been suggested that MCL 700.3609 and MCL 700.3610 be removed from the cites at the bottom of PC 604, and that MCL 700.3614(a) be changed to MCL 700.3614(b). Drafts are provided. See the attached e-mail. See the current form.

PC 607, Application/Petition to Reopen Estate: A probate court administrator has suggested that item 3 be revised because, if a personal representative has after-discovered assets, the assets should be inventoried again, which would require reopening the estate. It is claimed this could happen within one year of filing the sworn closing statement and would apply even if the personal representative has the power to act. See the current form.

PC 610, Registration of Trust: The Council of the State Bar Probate and Estate Planning Section has requested this form be modified to track new provisions in the Michigan Trust Code, MCL 700.7209 and MCL 700.7210,  which become effective April 2010. A draft is provided. See the attached e-mail. See the current form.

PC 617, Declaration of Intent to Give Notice By Publication: MCR 5.114(B)(1) states: “An application, petition, inventory, accounting, proof of claim, or proof of service must be either authenticated by verification under oath by the person making it, or, in the alternative, contain a statement immediately above the date and signature of the maker: ‘I declare under the penalties of perjury that this _______________ has been examined by me and that its contents are true to the best of my information, knowledge, and belief.’” PC 617 does not fit the description of a document needing to be verified. Should the declaration be removed? See the current form.
     Cindy Rude

Guardianship and Conservatorship Forms

"Presumptive Heirs":  A probate court administrator has asked the committee to discuss the definition of “presumptive heirs” and determine who should be listed as interested persons on certain forms. Specifically, it has been questioned whether the respondent’s parents should be listed as interested persons if there are children because, if there are children, the parents are not presumptive heirs under MCR 5.125(C)(24) and (C)(25). The following forms will be reviewed:   

       PC 639, Petition for Appointment of Conservator  – Should the parents be listed if there are        children? See the current form. (Listed below for discussion on another issue.)
       PC 675, Petition to Terminate/Modify Guardianship – Should the table in item 2b. be        modified for other possible scenarios? The presumptive heirs of a minor are not always the        parents (for example, they could be deceased) and the minor may have a child of his or her        own. See the current form.
       Comments Received:
           George Strander
       PC 676, Petition to Terminate/Modify Conservatorship – Should the parents be listed if        there are children? See the current form.
Comments
     Cindy Rude

PC 625, Petition for Appointment of Guardian of Incapacitated Individual: A probate register has requested that a telephone number for the subject of the petition be added, perhaps near the address. It has also been suggested that the age of any minor be included in item 10, similar to PC 558. See the current form. See PC 558.
     
PC 637, Order Following Review of Guardianship: The Council of the State Bar Probate and Estate Planning Section has suggested that changes be made to make it clear to guardians they must continue to file annual reports after an annual review is completed. It is asserted that guardians often misread the form to mean that guardianship is simply continued and they only need to be concerned with the next review date.  The council has also proposed several other changes. A draft is provided. See the attached e-mail. See the current form.
Comments Received:
     Eva Sylvester

PC 638a, Order Regarding Appointment of Guardian/Conservator: Last year the committee separated former PC 638, Petition to Terminate or Modify  Guardianship/Petition to Terminate or Modify Conservatorship, into two forms – PC 675 for guardianships and PC 676 for conservatorships. At that time, the SCAO asked whether the order, PC 638a, should also be separated because there are now two petitions for guardianships and conservatorships. The committee tabled the issue until 2009. See the attached meeting minutes. See the current form.
Comments Received:
     George Strander

PC 639, Petition for Appointment of Conservator: A probate register has suggested that a telephone number for the subject of the petition be included, perhaps near the address. It has also been suggested that the age of any minor be included in item 9, similar to PC 558. See the current form. See PC 558.    
  
PC 640, Order Regarding Appointment of Conservator: The Council of the State Bar Probate and Estate Planning Section has suggested the term “protected person” be replaced with “protected individual” because this is the term used in the Estate and Protected Individuals Code, section 1106(t). See the attached e-mail. See the current form.

PC 645, Letters of Conservatorship: A probate court administrator has suggested the “restrictions” section be revised to clarify that the conservator “shall not sell, mortgage, encumber, or otherwise dispose of any interest in real property without a prior court order of approval from this court” (new language in bold). See the current form.

PC 651, Petition for Appointment of Guardian of Minor: A probate register has requested that the mother’s and father’s telephone numbers be included on the form. See the current form.
Comments Received:
     Terry Beagle

PC 657, Order Following Hearing to Terminate Minor Guardianship: A probate register has asserted that the form no longer needs to include language regarding guardianships established before December 20, 1990, because minors under guardianships prior to that date are now over age 18 and the guardianships have terminated. Therefore, it is suggested the phrase “established after December 20, 1990” be removed in item 4 and that item 5 be deleted. See the current form.  

PC 658, Petition for Appointment of Guardian, Individual with Alleged Developmental Disability: A probate register has suggested that a telephone number for the subject of the petition be included, perhaps near the address. See the current form.
   
PC 660, Order Appointing Guardian for Individual with a Developmental Disability: A probate register has suggested that language be added for the appointment of an emergency temporary guardian. A draft is provided. Should language be added to the current form? Or should a new form be developed under MCL 330.1607(1), as suggested by a probate judge? It is also suggested that, if a new form is developed, it should allow for designation of the court to exercise powers as a temporary guardian. No draft of the proposed new form is provided.
Comments Received:
     Cindy Rudy
     Eva Sylvester

PC 663, Report of Guardian on Condition of Individual with Developmental Disability: A probate register has requested that item 12 be revised to reflect items 7 and 8 on PC 634, Annual Report of Guardian on Condition of Legally Incapacitated Individual. See the current form. See PC 634.

PC 669, Proof of Restricted Account and Annual Verification of Funds on Deposit: A probate register has suggested that the following language in bold, or something similar, be added to the form: "Attached is a copy of the statement reflecting this information as of the end of the annual account date.” It is asserted that it is time consuming to review information attached to the form and this directive would help simplify the process. The committee has previously addressed this issue. In 2007 the committee declined a request to include instructions for the financial institution to indicate that the balance is as of the end of the accounting period. Members concluded the financial institution is not going to have this information and decided it is acceptable for the balance to be as of the date of the verification. In 2008 the committee approved the statement that is currently on the form, but declined to add more precise instructions for proper completion of the form. Members decided that balance information need not match the balance on the account and revised the language to better track MCR 5.409(C)(4). See the current form.
Comments Received:
     Janie Diegel
     Cindy Rude
     Eva Sylvester

PC 671, Order for Administrative Closing (Conservatorship): The Council of the State Bar Probate and Estate Planning Section has suggested the term “protected person” be replaced with “protected individual” because this is the term used in the Estate and Protected Individuals Code, section 1106(t). See the current form.
 
PC 673, Petition and Order to Use Funds (Conservatorship): Several members of the legal community have raised questions regarding standards that financial institutions must follow for restricted orders in a conservatorship. A situation arose where a conservator allegedly forged new orders and obtained more money, and the forged orders were based on photocopies that did not contain original seals. The financial institution apparently claimed it did not have a duty to demand an original. To avoid further situations like this, the Calhoun County Probate Court currently adds an
instruction to the financial institution (at the bottom of the form) to only accept a certified copy with the raised court seal and to retain the certified copy so it cannot be used again. See the attached form used by the probate court. Would it be beneficial to have a similar instruction on the statewide form? See the current form.
Comments Received:
     Terry Beagle
     Janie Diegel

PC 674, Inventory (Conservatorship): The Council of the State Bar Probate and Estate Planning Section has suggested that the term “protected person” be replaced with “protected individual” because this is the term used in the Estate and Protected Individuals Code, section 1106(t). See the current form.
     Cindy Rude

PC 677, Petition to Terminate/Modify Guardian for Alleged Developmentally Disabled Individual: A probate judge and a probate register have requested that “alleged” be removed from the title of the form. It is asserted that “alleged” is inaccurate because, by the time this form is used, a guardian would have been appointed and a judicial determination would have been made that the person is in fact developmentally disabled.

A probate court has also suggested that space be added for the ward’s current address and/or guardian. See the current form.

New Form, Notice of Proceedings Concerning American Indian Child: Last year the committee considered a request to create a form for use in guardianship proceedings under the Indian Child Welfare Act (ICWA). The committee was informed that an SCAO work group regarding ICWA had been established and, therefore, the committee tabled the issue and referred the matter to the ICWA work group. See the attached meeting minutes. The ICWA work group has completed its primary goal, which was to recommend court rules, and did not discuss court forms. Therefore, the proposed form is being placed before the committee again, for development under 25 USC 1912. It is suggested the form could be modeled after JC 48. See JC 48.
Comments
     Cindy Rude

New Form, Petition for Guardianship Pursuant to Nomination: A request has been made to develop a form under MCL 700.5202 for guardianships pursuant to nomination. A draft is provided.
Comments
     Cindy Rude
              
Mental Health Forms

PCM 201, Petition/Application for Hospitalization: A member of the general public has suggested this form be modified to better reflect the Mental Health Code, PA 258 of 1974.  It is asserted the form needs to clearly distinguish between admission by petition and admission by medical certification. No specific suggestions have been provided. See the attached e-mail.The committee addressed this issue in 2006 and 2007. Both times the committee concluded it was appropriate to combine the petition and application into one form, and that the form would be understandable by the mental health community. See the current form.
Comments Received:
     Dan Jakeway

PCM 209a, Supplemental Petition for Examination/Hospitalization and Order: A probate court administrator has suggested that, in order to avoid redundancy on the order section of the form, the first checkbox option in item 11 be moved into item 10, and the second checkbox option in item 11 be deleted. See the attached draft. See the current form.  
    
PCM 211, Notice of Hospitalization  and Certificate of Service: A probate judge has requested the form include a line in item 1 for the name of the hospital where the respondent is admitted. See the current form.
Comments Received:
     Dan Jakeway
     Cindy Rude

PCM 214, Initial Order Following Hearing on Petition for Admission: A member of the general public has suggested that item 6 be revised to include the following language: “Stipulation to entry of the order does not imply an effective order of an involuntary commitment, but it merely postpones the entry of an order, and the patient reserves the right to refuse treatment at any time and demand a hearing.” It is asserted the second checkbox option in item 6 is misleading. A request has also been made to insert “SCAO-Approved, use of form, verbatim, mandatory” in the upper left-hand corner of the form, rather than just “Approved, SCAO.” See the attached e-mail. See the current form.
Comments Received:
     Dan Jakeway

PCM 214a, Order Following Hearing on Petition for Judicial Admission: A probate judge has inquired why the form does not accommodate the hospitalization of a person with a developmental disability when that person is before the court on a petition for judicial admission pursuant to MCL 330.1518, but the type of hospitalization needed is prescribed by Chapter 4 of the Mental Health Code. There appears to be no specific relationship between Chapters 4 and 5 in regard to the different hospitalization needs of the person with a developmental disability. Thus, when a petition is brought under Chapter 5, the remedies of Chapter 4 do not appear to be available to the judge, even though the situation is such that those are the more appropriate remedies. Can PCM 214a be used under Chapter 4? Or is this a legislative issue? See the current form.

PCM 217a, Order to Modify Order for Alternative Treatment or Combined Hospitalization and Alternative Treatment: In 2007 the committee suggested forms be created pursuant to MCL 330.1519 and asked the SCAO to prepare drafts for discussion in 2008. After reviewing the relevant statutes and the current forms, the SCAO informed the committee in 2008 that no new forms   needed developed and that PCM 217a is the proper form to be used. Discussion on whether to revise PCM 217a was tabled until 2009. See the attached meeting minutes. Should the form be modified for use under MCL 330.1519? See the current form.

PCM 219, Second or Continuing Order for Treatment: A probate court administrator has requested the respondent’s date of birth be included on the form because sometimes it is difficult to identify people with the same last name. In these situations, is the file number a distinguishing factor? See the current form.

PCM 220, Petition for Discharge from Continuing Treatment or Judicial Admission and PCM 222, Order Following Hearing on Petition for Discharge from Continuing Treatment or Judicial Admission: A probate judge has noted that item 4 allows a patient to continuously file petitions. Should the form be revised to discourage excessive filings?

Also, item 3 needs to be corrected to reflect current law. Several members of the legal community have advised the SCAO that item 3 is inapplicable to mentally incapacitated individuals because MCL 330.1485 was repealed in 1997. When the previous version of the form (9/96) was resurrected by the committee last year, item 3 should have been updated but was not.

A probate register has also suggested the committee consider separating PCM 220 into two forms: one for continuing treatment and one for judicial admissions. It is asserted that judicial admission and continuing treatment are distinct concepts and, therefore, two forms would be less confusing. Should the form be separated? If so, this would mean that PCM 222 would also need to be separated. See PCM 220. See PCM 222.
     Cindy Rude

PCM 235, Request to Defer Hearing on Commitment: A probate register has asserted this form is rarely completed correctly and has suggested several revsions, including: (1) delete the words "one of" in item 1; (2) modify the checkboxes in item 1 so the current item 2 is combined with item 1; (3) delete the current item 2 (because it is combined with item 1); and (4) renumber items 3 and 4 accordingly. See the attached e-mail for a detailed explanation of the proposed changes. See the current form.

Proposals for Family Division of Circuit Court Section
        Published July 30, 2009
          Comment Period Expires August 31, 2009

General Discussion

Military/Nonmilitary Affidavit Language: Last year the committee discussed whether certain juvenile and adoptions forms should be revised to include a provision that prevents courts from proceeding in matters against members of the military who are deployed until certain safeguards are met, such as a military/nonmilitary affidavit.The committee agreed that JC 04b, Petition (Child Protective Proceedings), should include the affidavit to raise awareness of the courts, so they can comply with the Servicemembers’ Civil Relief Act. The committee agreed to the following language on JC 04b: “□ Military/nonmilitary affidavit is attached.” Members also discussed adding the language to other adoption, custody, and guardianship petitions. The committee asked the SCAO to research which forms might be affected and to present those forms at the 2009 meeting. The SCAO suggests the following petitions be reviewed: JC 98, JC 99, PCA 301, PCA 301a, PCA 310, PCA 313, PCA 327, PCA 335, and PCA 349. See the current JC 98; JC 99; PCA 301; PCA 301a; PCA 310; PCA 313; PCA 327; PCA 335; PCA 349.

Signing and Authentication of Papers: The committee is asked to decide whether certain juvenile forms need to be verified. The Circuit and District Section of the Michigan Court Forms Committee recently removed the declaration language from all circuit and district forms that do not require verification under MCR 2.114(B). Certain juvenile forms currently include declaration language that says either, “I declare that the statements in this petition are true to the best of my information, knowledge, and belief” or “I declare that this [name of document] has been examined by me and that its contents are true to the best of my information, knowledge, and belief.”

Subchapter 3.900 of the Michigan Court Rules governs juvenile proceedings. MCR 3.901 states: “The rules in this subchapter, in subchapter 1.100 and in MCR 5.113, govern practice and procedure in the family division of the circuit court in all cases filed under the Juvenile Code.” While MCR 5.113 governs the form and filing of papers, it does not provide for the verification/authentication of papers. The authentication/verification of papers is addressed in both MCR 5.114(B) and MCR 2.114(B); however, neither of these rules is incorporated by reference into the juvenile proceedings subchapter. Meanwhile, MCL 712A.11 provides that juvenile petitions – namely JC 04a and JC 04b – “shall be verified” (emphasis added).

The forms that currently include a declaration statement are: JC 01, JC 02, JC 04a, JC 04b, JC 05a, JC 05b, JC 15, JC 16, JC 18, JC 33, JC 34, JC 36, JC 44, JC 46, JC 52, JC 54, and JC 81. Based on the court rules and statute, it appears the declaration statement is not required on any of these forms except the petitions, JC 04a and JC 04b. Should the declaration language remain on the forms? See the current JC 01; JC 02; JC 04a; JC 04b; JC 05a; JC 05b; JC 15; JC 16; JC 18; JC 33; JC 34; JC 36; JC 44; JC 46; JC 52; JC 54; JC 81.

Likewise, it is questioned whether the proofs of service on certain juvenile forms should include the following declaration statement: “I declare that this proof of service has been examined by me and that its contents are true to the best of my information, knowledge, and belief” (or something similar). Two forms currently contain this declaration statement: JC 12a and JC 12b, Proof of Service/Nonservice. If the declaration language remains on these two forms, should it also be added to the proofs of service on the summons forms, JC 20 and JC 21? See the current JC 12a; JC 12b; JC 20; JC 21.

Adoption Forms

PCA 301, Petition for Adoption: It has been suggested that a checkbox be inserted before item 14.  It is asserted that the form is confusing because there is a checkbox in front of item 15 but not item 14. See the current form.

PCA 344, Petition and Order for Release of Information from Confidential Intermediary and Court: A probate court caseworker has proposed several alternatives for revising the order. See the attached e-mail for details of the proposed changes. See the current form.

Juvenile and Child Protective Forms

JC 20, Summons: Order to Appear (Delinquency Proceedings)/(Personal Protection Proceedings) and JC 21, Summons: Order to Appear (Child Protective Proceedings):
The committee is asked to discuss whether the newly-designed proof of service fee box that has been applied to all circuit, district, and friend of the court forms should be applied to these two forms. The redesigned fee box provides a field for an incorrect address fee, which was requested by the Michigan Court Officer, Deputy Sheriff and Process Servers Association. See the current JC 20 and JC 21. See the current MC 230. See the minutes of the 2009 Circuit and District Section committee meeting.

JC 40, Order for Contempt of Court: It has been suggested this form would be more efficient if space is included for the specific findings/sanctions in the case. It is also asserted the form should be modified to allow “extra case-specific” information, and that language regarding jail time held in abeyance and used at caseworker discretion should be included to help those who prepare court orders. See the current form.

JC 59, Order of Adjudication (Delinquency Proceedings): A request has been made to include information on licensing sanctions underneath the abstracting information, similar to JC 14a and JC 14b. It is asserted that, because all abstractable offenses should be abstracted at adjudication (with the exception of drug crimes), the sanctions information is needed for it to be applied against the juvenile’s driving record. See the current form. See the current JC 14a and JC 14b.

JC 66, Application to Set Aside Adjudication and Order: The terms “order of disposition” and “disposition” should be replaced with  “adjudication” or “record of adjudication,” as indicated, to reflect the language of the statute, MCL 712A.18e. Also, the SCAO has been notified the address for the Michigan State Police Criminal Records Division has changed again and should be revised on the instructions page. The correct address is: P.O. Box 30634, Lansing, Michigan 48913. See the current form.

New Form,  Petition and Order for Court-Appointed Attorney: A probate judge has requested a form be developed to evaluate indigency for purposes of appointing counsel in delinquency cases and protective proceedings.  It is asserted the current form for appointing attorneys in criminal cases (MC 222) is not usable in family division cases.  See the attached letter. A draft is provided. See the current MC 222.

New Form, Contact/Location Information of Relatives: It has been suggested a form be developed to provide contact/location information for a child’s/children’s relatives. While the Department of Human Services (DHS) is required to collect this information under MCL 722.954a, it is asserted that DHS doesn’t always inform the court which relatives have been considered for placement. Therefore, it is claimed that judges sometimes order care to DHS without complete knowledge of who DHS has reviewed as a potential placement for the child. It is asserted an SCAO-approved form makes practical sense because the court is the entity that (1) enters the order to remove a child from the home and (2) oversees where a child is placed. A draft is provided.

JC 05b, Order to Take Child(ren) into Protective Custody (Child Protective Proceedings)
JC 11a, Order after Preliminary Hearing (Child Protective Proceedings)
JC 19, Order Following Dispositional Review/Permanency Planning Hearing (Child Protective Proceedings
JC 63, Order Following Hearing To Terminate Parental Rights (Child Protective Proceedings)
JC 75, Order Following Emergency Removal Hearing (Child Protective Proceedings)
JC 76, Order After Post-Termination Review/Permanency Planning Hearing (Child  Protective Proceedings)
JC 91, Order Appointing Juvenile Guardian
JC 92, Acceptance of Appointment (Juvenile Guardian)
JC 93, Letters of Juvenile Guardianship
JC 94, Annual Report of Juvenile Guardian on Condition of Child
JC 95, Order Appointing Person to Investigate Juvenile Guardianship
JC 96, Report after Investigation of Juvenile Guardianship
JC 97, Order Following Investigation and Report of Juvenile Guardianship
JC 98, Petition to Terminate Appointment of Juvenile Guardian, Notice of Hearing, and Order for Investigation
JC 99, Petition to Revoke Juvenile Guardianship, Notice of Hearing, and Order for Investigation
JC 100, Order Following Hearing on Petition to Terminate Appointment of Juvenile Guardian
JC 101, Order Regarding Revocation of Juvenile Guardianship: These forms were recently revised and developed to comply with Public Act 199, 200, and 203 of 2008, and to comply with new and amended court rules relating to these laws. The committee is asked to review the forms and discuss any items of concern. Regarding JC 11a, it is suggested that line 23 be revised to reflect similar provisions on JC 19 (line 20) and JC 75 (line 16). See the current JC 05b; JC 11a; JC 19; JC 63; JC 75; JC 76; JC 91; JC 92; JC 93; JC 94; JC 95; JC 96; JC 97; JC 98; JC 99; JC 100; JC 101.

Proposals for June 2, 2009

          Published April 16, 2009
          Comment Period Expires May 18, 2009

The following forms are being proposed to implement the provisions of 2008 PA 199 - 203, effective July 11, 2008 and recently adopted Michigan Court Rules (see ADM 2008-29), effective July 1, 2009. These forms will be acted on by the Family Division Section of the Michigan Court Forms Committee at a specially convened meeting on June 2, 2009.

Comments from Department of Human Services, received April 23, 2009

JC 11a, Order After Preliminary Hearing (Child Protective Proceedings): The proposed change to this form implements amendments in 2008 PA 199 with regard to automatic suspension of parenting time when a petition to terminate parental rights is filed. See draft.

JC 19, Order Following Dispositional Review/Permanency Planning Hearing (Child Protective Proceedings): The proposed changes to this form implement amendments in 2008 PA 200 with regard to initatiating proceedings to terminate the parental rights to children and the conditions under which the court is not required to order the agency to do so and with regard to appointment of a juvenile guardian when it is in the best interests of the children to do so. The changes also incorporate the provisions in MCR 3.979 with regard to juvenile guardianships, including appointment, termination of a juvenile guardian, and revocation of a juvenile guardianship. See draft.

JC 63, Order Terminating Parental Rights (Child Protective Proceedings): The proposed change to this form implements amendments in 2008 PA 200 with regard to best interests of the children. See draft.

JC 75, Order Following Emergency Removal Hearing (Child Protective Proceedings): The proposed changes to this form implement amendments in 2008 PA 199 with regard to automatic suspension of parenting time when a petition to terminate parental rights is filed, as well as completely rewriting item 7 to better reflect the procedure for emergency removal. See draft.

JC 76, Order After Post-Termination Review/Permanency Planning Hearing (Child Protective Proceedings): The proposed changes to this form implement amendments in 2008 PA 200 with regard to appointment of a juvenile guardian when it is in the best interests of the children to do so. The changes also incorporate the provisions in MCR 3.979 with regard to juvenile guardianships, including appointment, termination of a juvenile guardian, and revocation of a juvenile guardianship. See draft.

JC 91, Order Appointing Juvenile Guardian: This is a new form required by MCR 3.979(B). See draft.

JC 92, Acceptance of Appointment (Juvenile Guardian): This is a new form required by MCR 3.979(B)(1). See draft.

JC 93, Letters of Juvenile Guardianship: This is a new form required by MCR 3.979(B)(2). See draft.

JC 94, Annual Report of Juvenile Guardian on Condition of Child: This is a new form required by MCR 3.979(E)(1). See draft.

JC 95, Order Appointing Person to Investigate Juvenile Guardianship: This is a new form developed pursuant to MCR 3.979(D)(2). See draft.

JC 96, Report After Investigation of Juvenile Guardianship: This is a new form developed pursuant to MCR 3.979(D)(2) and (F)(3). See draft.

JC 97, Order Following Investigation and Report on Juvenile Guardianship: This is a new form developed pursuant to MCR 3.979(D)(3). See draft.

JC 98, Petition to Terminate/Revoke Juvenile Guardianship, Notice of Hearing, and Order:This is a new form required by MCR 3.979(F). See draft.

JC 99, Order Following Hearing on Petition to Terminate/Revoke Juvenile Guardianship: This is a new form required by MCR 3.979(F). See draft.

Proposals for March, 2009

Circuit and District Court Forms

Friend of the Court Forms

Proposals for Circuit and District Court Section
          Published January 22, 2009
          Comment Period Expires February 20, 2009

District Court Session

Verified Pleadings and Declaration Language: Last year the committee asked the SCAO to research the need to include the standard declaration language on various pleadings.  Pursuant to MCR 2.114, only “verified” pleadings require an oath or, in the alternative, the declaration language. Therefore, the SCAO recommends the declaration language be removed from the following forms because there is no requirement that they be verified:  CIA 04, DC 102a, DC102b, DC 102c, DC 102d, DC 103, and DC 107.

CIA 02, Judgment, Civil Infraction: The SCAO believes this form does not accurately reflect the differences between traffic civil infractions and nontraffic state and municipal civil infractions.  It is suggested the note to the defendant be revised to say:   “TO DEFENDANT:  If you fail to pay this judgment, the Secretary of State may be authorized to take action against your driving privileges. …” A draft is provided.

CIA 03, 14-Day Notice, Civil Infraction: The SCAO believes this form does not accurately reflect the differences between traffic civil infractions and nontraffic state and municipal civil infractions.  It is suggested that items 1 and 4 be revised to reflect that the action is optional, due to the fact that the action may be inappropriate in state and municipal civil infractions.  It is suggested that item 1 be changed to say:  “the Secretary of State will immediately suspend your driving privileges for most driving offenses.”   It is also suggested that item 4 be changed to better reflect the statute, MCL 257.321a(7) and (8).   It is suggested that item 4 say:  “your operator’s license will not be issued or renewed if this notice is for multiple parking violations or a nontraffic state civil infraction.”  Because the statute speaks in terms of  two or more parking violations if the violation involves handicap parking and six or more for other parking violations, but also speaks about either one or less than six violations, the use of "multiple parking violations" is the appropriate language to cover all situations.  A draft is provided.

CIA 06, Order to Show Cause, Civil Infraction: Last year the committee discussed whether this form meets the minimum requirements of MCR 3.606.  While MCL 257.908 specifies the procedures for noncompliance with a judgment, MCR 3.606 may supersede these provisions pursuant to MCR 1.104.  The committee discussed how often this form is used and suggested that MC 230, Motion and Order to Show Cause, be used instead because it complies with MCR 3.606 and MCR 2.107(B)(1)(b), which requires personal service in contempt proceedings unless the court orders otherwise.  The committee tabled any further discussion and suggested an inquiry be republished in 2009 regarding whether MC 230 should be used instead of CIA 06. See the current CIA 06 and MC 230.

DC 40, Notice of Seizure of Personal Property Subject to Forfeiture without Process and Order; DC 41, Motion and Order to Seize Personal Property Subject to Forfeiture; DC 42, Application and Ex Parte Order to File Lien on Real Property Subject to Forfeiture; DC 43, Notice of Seizure and Intent to Forfeit and Dispose of Property; DC 44, Order for Return of Property or Discharge of Lien in Forfeiture Proceedings; DC 45, Notice of Intent to Forfeit and Dispose of Property; DC 46, Order Following Forfeiture Proceedings; DC 47, Order of Distribution in Forfeiture Proceedings: The case title on these forms was designed for criminal cases, but there is a question whether this is appropriate because the matter is not the State of Michigan against the defendant, or even the plaintiff against the defendant.  Rather, the matter is in regard to the forfeited property.  It is suggested that the current case title be replaced with “In re _______________” or “In the matter of _________________.” See the current DC 40; DC 41; DC 42; DC 43; DC 44; DC 45; DC 46; and DC 47.
           
DC 84, Affidavit and Claim, Small Claims: Effective July 1, 2009, the maximum amount for small claims cases is as follows:  (1) beginning July 1, 2009 – $4,000; (2) beginning July 1, 2010 – $4,500; (3) beginning July 1, 2011 – $5,000.  The form should be revised to reflect the new amounts. A draft is provided.
NOTE: Senate Bill 786, which would have increased the maximum dollar amount for small claims cases, was pocket vetoed on January 21, 2009, and did not become law. Therefore, this discussion item will be removed from the District Court Session of the agenda.

A request has also been made that item 11 be changed to, “I believe the defendant □ is
□ is not    mentally competent” (rather than incompetent).  It is asserted that plaintiffs are improperly marking this item. See the current form.
Comments Received:
     Donna Beaudet

DC 102d, Complaint, Termination of Tenancy, Mobile Home Park-Mobile Home Owner, Just-Cause Termination; DC 105a, Judgment, Termination of Tenancy, Mobile Home Park-Mobile Home Owner, Just-Cause Termination: It has been suggested that these forms apply to persons who rent mobile homes, and not just to persons who own mobile homes.  See the attached e-mail.  The committee is asked to determine the scope of these forms in light of MCL 600.5779, MCL 600.5775(2)(f), and the original legislative analysis.  The history of these forms is provided. See the current DC 102d and DC 105a.
Comments Received:
     Judge M. Randall Jurrens

DC 104, Summons, Landlord-Tenant/Land Contract: The accuracy of the Proof of Service has been questioned.  Based on the fact that personal jurisdiction over the defendant must be acquired for money judgments, substituted service and service by attachment, without court order, are permissible only for possession judgments.  The SCAO suggests a use note be added to the Proof of Service as follows:  “TO PROCESS SERVER:  You are to serve the summons and complaint and attachments as instructed.  You must make and file your proof of service with the court clerk.  If you are unable to complete service, you must return this original and all copies to the court clerk.  NOTE:  Substituted service and service by attachment are only permissible for possession judgments.  Use MC 303, MC 304, and MC 307 for alternate service when a money judgment has been requested.”  A draft is provided.
Comments Received:
     Donna Beaudet

DC 107, Order of Eviction: The Michigan Court Officer, Deputy Sheriff and Process Servers Association has asserted the Order should indicate that personal property be removed in addition to the person(s).  The association has suggested the Order be revised to say:  “You are ordered to remove the above named defendant(s) and their personal property from the premises described and to restore peaceful possession to the plaintiff.”  The committee should note there is no statutory obligation in MCL 600.5744 to remove personal property or possessions from the premises. See the current form.
Comments Received:
     Judge M. Randall Jurrens
     Donna Beaudet
     Michigan Court Officer, Deputy Sheriff and Process Servers Association

DC 118, Complaint and Summons Regarding Dangerous Animal: It has been reported that plaintiffs are not attaching facts in support of their claims, as directed on the form.  A request has been made that the statement, “Facts in support of the above claim(s) are stated in the attached document” be highlighted or set off from the remainder of the form.  It has also been suggested that space be included for the complainant’s telephone number. A draft is provided.

DC 225, Complaint, Misdemeanor: A district court has indicated that it is being asked to accept a criminal Complaint and a Warrant on one page to save paper.  The judge has inquired whether this is appropriate.  These are two separate documents that serve different legal purposes and were designed in a single packet to facilitate completion by the complainant.  Is it appropriate to merge these particular documents into one?

The committee should also consider whether the form meets the minimum requirements of MCL 764.1b.  The Warrant does not include the following information, as prescribed by statute:  (1) “command the peace officer to take the person, without unnecessary delay, before a magistrate of the judicial district in which the offense is charged to have been committed, to be dealt with according to law,” and (2) “direct that the warrant, with a proper return noted on the warrant, be delivered to the magistrate before whom the arrested person is to be taken.”  In addition, the statute indicates the Warrant may also require the peace officer to summon the witnesses named in the Warrant.  Should the language on the Warrant be revised accordingly? See the current form.

New Form, Affidavit and Counterclaim, Small Claims: The committee reviewed a draft of this form last year.  The members suggested a case number field be added to item 1 and approved the draft with that minor change.  Members also asked that an Order transferring the case be added to the form for review in 2009.  A modified draft is provided.  The addition of the Order requires additional copies for the distribution, so this issue should also be discussed.

Other questions include:  (1) Should the distribution at the top of the form say, “Original – Transferring court” or “Original – District court”? (2)  Is “true copy” necessary in item 3, the NOTE, and the Certificate of Mailing?  While MCL 600.8423 says a “true copy of the complaint” shall be attached to the affidavit, Michigan Trial Court Case File Management Standards indicate that only MCR 3.211(H)(1) requires the actual use of these words.  (3) In the Order, is it sufficient to say, “This action is transferred to _______________ ...”?  Or should the language be more specific and say, “The action in the small claims division of the district court is transferred to ________________ …”?
Comments Received:
    Sandi Hartnell

back to top

Joint Session

Proof of Service Fees: The Michigan Court Officer, Deputy Sheriff and Process Servers Association has requested the box for designating the Proof of Service fees be expanded to list the different types of fees or, in the alternative, somehow be updated to reflect the provisions in MCL 600.2559.  Does the fee box need revised?  Do the courts need a detailed list of fees? A draft of a proposed fee box is provided.  See also the attached e-mail.
      
Verified Pleadings and Declaration Language: Last year the committee asked the SCAO to research the need to include the standard declaration language on various pleadings.  Pursuant to MCR 2.114, only “verified” pleadings require an oath or, in the alternative, the declaration language.  Accordingly, the SCAO recommends the declaration language be removed from the following forms because there is no requirement that they be verified:  MC 01b, MC 35, MC 72, MC 221, MC 222, MC 258, MC 321b, MC 501, and MC 503. 

Clerk of the Court, Deputy Clerk of the Court, and Court Clerk: Last year the committee discussed the inconsistent use of “clerk of the court,” “deputy clerk of the court,” “deputy clerk,” and “court clerk” beneath the signature lines on court forms, and considered whether a single standard could be applied. The committee recommended the SCAO identify and create a list of forms for the committee’s consideration that contain a “clerk of the court” signature line.  Due to the large number of recently revised forms, the fact that this would also affect a large number of forms with no significant benefit, and the fact that some of these differences are intentional, the SCAO recommends this item be removed from the agenda.

E-mail Addresses: A request has been made by the Michigan Court Officer, Deputy Sheriff and Process Servers Association that a field for the plaintiff’s e-mail address be included in the case title of forms that require Proof of Service.  It is asserted this would allow more timely notification to the plaintiff once the document is served.  The committee should note that no statute or court rule requires an e-mail address in the caption, and the SCAO- Approved forms typically do not include fields that have not been mandated by statute or court rule.  By including this field in the caption, it implies it is mandated.  Should this field be added to certain forms and, if so, which ones and where?  See the attached e-mail.
Comments Received:
     Donna Beaudet
     Michigan Creditors Bar Association

MC 02, Appearance: A request has been made that a field for the attorney’s e-mail address be included for assistance in sending notices.  It is asserted some attorneys stipulate that court notices can be sent to them electronically.  Should the e-mail address be on this form instead of in the stipulation? See the current form.
Comments Received:
     Michigan Creditors Bar Association

MC 06, Notice to Appear: A request has been made to develop a Notice to Appear that is geared more toward civil cases or, in the alternative, to modify the current Notice to Appear to allow for civil matters.  It is claimed that it would be beneficial to have certain proceedings on the same Notice to Appear.  The following proceedings are currently listed on the form:  Pretrial Conference (civil), Preliminary Examination, Jury Selection (civil), Jury Trial (civil), Nonjury Trial (civil), Sentencing, Motion (civil), Arraignment, Informal Hearing, Formal Hearing, and Blank (civil).  Some of these proceedings relate to traffic/criminal proceedings only.  Should the existing form be revised, or should a new form be developed? See the current form.

MC 07, Default Request, Affidavit, and Entry; MC 07a,  Default Request, Affidavit, Entry and Judgment (Sum Certain): The Michigan Creditors Bar Association has requested that item 4 on MC 07 and item 5 on MC 07a be removed.  Currently, items 4 and 5 both state:  “The claim  □ is    □ is not  based on a note or other written evidence of indebtedness.”  The MCBA asserts there is no need to include this provision because MCR 2.603, as amended September 1, 2008, no longer requires written instruments to be filed with the court. The SCAO left this provision on the form as a statement of fact from the plaintiff to the defendant, and it is not intended to require anything for the court’s consideration.  Is this a training issue for the courts?  Or is this statement incorrect or simply unnecessary? See the current MC 07 and MC 07a.

MC 13, Request and Writ for Garnishment (NonPeriodic); MC 52, Request and Writ for Garnishment (Income Tax Refund/Credit): It has been suggested that these forms may not adhere to the applicable court rules because there is one line for “Plaintiff/Agent/Attorney signature” in the Request section. Accordingly, the committee needs to discuss the following:  (1) Does a writ of garnishment filed by a corporation need to be signed by an attorney? (2) Is it required that the writ only be signed by someone with knowledge of the facts? (3) Are both signatures (attorney and someone with knowledge of facts) required?

MCR 3.101(D) says that “the clerk shall issue a writ of garnishment if the plaintiff, or someone on the plaintiff’s behalf, makes and files a statement verified in the manner provided in MCR 2.114 ….” MCR 2.114(C) says that “every document of a party represented by an attorney shall be signed by at least one attorney of record.”   The more specific rule in MCR 3.101 supersedes the more general rule in MCR 2.114, but is there an exception because MCR 3.101 refers to MCR 2.114? Or does this reference to MCR 2.114 only refer to the making and filing of a statement verified as required by MCR 2.114?

MC 13 also has an error on page three under “Examples of Income Exempt from Garnishment.”  The citation in the first bullet, Individual Retirement Account, should be changed to MCL 600. 6023(1)(k). See the current MC 13 and MC 52.
Comments Received:
     Donna Beaudet
     Michigan Creditors Bar Association

MC 14, Garnishee Disclosure: A request has been made that item 5b include the directive “Enter 0 if negative” at the end.  If the form is manually completed, it is asserted that line 5b could result in a negative number, which could be “mistakenly” withheld.  If this happens, it is argued the plaintiff may not know the garnishment is contrary to law and the plaintiff would therefore be receiving a benefit when it should be receiving nothing.  Should the directive be added? See the current form.
 
MC 17, Certificate of Satisfied Judgment: An attorney has requested this form be expanded to include other orders, including discharge of lien and lis pendens. This would require changing the title of the form to “Certificate of Satisfied Order,” or something similar.

A court clerk has requested that this form be modified for releasing garnishments because many garnishments are released due to a judgment being satisfied, and it would save time if the garnishment could be released simultaneous with the satisfaction of judgment. There is already a separate Garnishment Release form, MC 50.  The problem with combining these is that the plaintiff in the garnishment proceeding may not be the plaintiff in the underlying civil case.  Should these remain separate forms?  

It is has also been suggested that the statement, “The judgment has been paid in full to the court on _____________________”  should be changed to “The judgment has been paid in full." It is asserted
Date
that judgments are paid to the plaintiff, and not the court.  Is this a correct interpretation of MCR 2.620(2)? See the current form.
Comments Received:
    Donna Beaudet

MC 19, Request and Order to Seize Property: The Michigan Court Officer, Deputy Sheriff and Process Servers Association has requested that the checkbox in item 4 be deleted and the language changed to:  “Deposit proceeds of sale with the plaintiff after deducting statutory fees and statutory expenses, unless ordered by the court to deposit proceeds with the court.”  The association asserts this change is necessary because (1) plaintiffs mark the box not understanding its purpose, (2) the courts often refuse to take money for deposit, and (3) the SCAO accounting policies for the trial courts direct the courts to avoid accepting money.  However, the SCAO notes there is no accounting policy that directs trial courts not to accept money/proceeds from the sale of seized property.  Section 6-05 of the Michigan Court Administration Reference Guide states, “A bond and trust account is established for the receipt and disbursement of bond and other trust funds such as restitution, garnishment, and proceeds from the sale of seized property pursuant to MCR 3.106.”  Court rule requires the money be deposited with the court. The court should receipt the money as a trust payment, deposit the money into the trust account, and disburse the money to the plaintiff from the trust account.  Is there a way to make clear that the Order is to be completed by the court and not the plaintiff?
NOTE OF CLARIFICATION: The statement "Court rule requires the money be deposited with the court" is meant to convey that the court rule permits money to be deposited with the court at the court's discretion, not that it is mandated.

The association has also suggested that the language in item 6 be changed to:  “Unless earlier satisfied in full or in part, you must return this order not less than 20 days, nor  more than 90 days, from the effective date.”  It is argued that the current language prohibits the return before 20 days, even if satisfaction has occurred.  According to the association, the 20-day minimum is based on "old law” (MCL 600.6002). 

Also, does MCR 2.621 generally apply to this form? If not, is there a requirement elsewhere that the request be verified? See the current form.
Comments Received:
     Donna Beaudet

MC 39, Judgment, Claim and Delivery: When the form was revised in 2008, the line for “costs” was inadvertently deleted and should be added back to the form.  A draft is provided.

MC 50, Garnishment Release: A question has arisen regarding who should serve this document.  Must the court sign the Certificate of Mailing and send the copies to the garnishee, the defendant, and the plaintiff?  Or may the court leave it blank and return all copies to the plaintiff for service?  The SCAO has researched the form’s history and concluded it was originally intended as a document prepared by the court based on some action by the plaintiff or the court itself.  Therefore, the SCAO believes the clerk should serve the document.  This eliminates any doubt that the garnishee has been served.  

It has been suggested the “as of” language on this form be changed to:  “Any amounts withheld on or after _______________ shall be returned to the defendant and any further withholdings shall be
           Date
discontinued.”  It is asserted the “as of”  language is unclear as to what happens with funds that have been withheld as of the release date and that any money withheld before the release date and not yet sent to the plaintiff must be given to the defendant.

A garnishee defendant has requested that the form be redesigned so the defendant’s social security number is not near the address, for those courts that use window envelopes for mailings. See the current form.
Comments Received:
     Donna Beaudet
     Michigan Creditors Bar Association

MC 203, Writ of Habeas Corpus: Last year, when reviewing this form for possible application of standards of service, the committee questioned the purpose of the Notice to Prosecuting Attorney and discussed how the form is actually used.  The committee tabled any further discussion and requested the SCAO research the form’s development.   In its research, the SCAO found the Notice to Prosecuting Attorney (“notice”) has been on the form since it was first developed in 1981.  The SCAO-Approved form was developed based on a local court form and the validity of the notice was not discussed by previous forms committees.  On the 12/84 version of the form, a checkbox option was removed before the statement “When required” and the language “by MCR 3.303(L)(2)” was added to the notice.  MCR 3.303 was amended, effective March 1, 1985, and the form was revised accordingly to require notice to the prosecuting attorney in certain instances.  MCR 3.303(L)(2) provides that the prisoner may not be discharged “until sufficient notice of the time and place of the hearing is given to the prosecuting attorney of the county within which the prisoner is detained ….”   

Last year it was suggested the form might need to be redesigned.  Is this still a necessary consideration? See the current form.

MC 218, Order Revoking Release and Forfeiting Bond, Notice of Intent to Enter Judgment: A request has been made that language in the Order section be changed.  The following is suggested:  "The surety or other depositor shall appear before the court on ___________________ to show cause why judgment should not enter against him/her for the full amount of bail/surety bond.”  It is claimed the form is potentially confusing because it distinguishes between defendant, parent, surety, and other depositor in the Notice section, but the show-cause language in the Order section only refers to the surety.

It is asserted that MCL 765.6(2) and MCL 765.28 distinguish between a surety bond executed by a surety approved by the court (bail bond company) and a bond executed by an unlicensed surety (other depositor).  It is questioned whether a show-cause date has to be set for a situation other than a 10% bond posted by a surety.  The SCAO believes that MCL 765.28 is applicable to anyone who is posting bond on behalf of a defendant and that a third party is considered a surety.  Does the current language inaccurately indicate that only a surety approved by the court has to attend the show-cause hearing, even though notice must be provided to any depositor?  Should the language on the Order section be revised to clarify that any person who posted bond is considered a surety?  See the current form.  
Comments Received:
   Rhonda Swayze

MC 219, Judgment of Sentence: The SCAO suggests that the word “Licensing” be deleted from item 4 because the citation to MCL 257.625(20)(b) on page two refers to 257.625n and 257.904d, which involve vehicle sanctions and not licensing sanctions.  The SCAO also suggests the language on page two of the form be revised to say:   “Sanctions are reportable to the State Police pursuant to:     
● MCL 333.7408a(11) and MCL 333.7408a(12)(b), including sentences for imprisonment under 90 days
● MCL 257.625(21)(b).”

A draft is provided (added language underlined).    

MC 222, Petition and Order for Court Appointed Attorney: A request has been made to add a field for obtaining a financial background report on a defendant who is requesting court-appointed counsel.  It is asserted this would be helpful in determining whether counsel should be appointed and, if appointed, whether contribution or reimbursement is appropriate. The proposed language is:  “8. FINANCIAL REPORT AUTHORIZATION   I authorize the court, the court’s funding unit, and their employees or agents to obtain a consumer credit report and other financial information about me from a consumer credit reporting agency or any other entity.”  A draft is provided.  Is this appropriate?

MC 227, Application to Set Aside Conviction: The Attorney General’s Office and the Michigan State Police have requested that personal service be removed from the Proof of Service.  Therefore, the language “or by leaving it at his/her office” and “or by leaving them at the department” should be deleted.  The standard language “addressed to the last-known address” should also be added.  On the Instructions page, the language “or deliver” should be deleted from items 7 and 9, and “mailed or delivered” in item 10 should be replaced with “served.”  The Michigan State Police address has also changed and item 10 should be revised accordingly: Michigan State Police, Criminal Records Division, 106 W. Allegan, Lansing, Michigan 48933. A draft is provided.

MC 230, Motion and Order to Show Cause: An attorney has claimed the affidavit on this form does not comply with MCR 3.606(A) and MCR 2.119(B) because language regarding “personal knowledge” and “competent to testify” is not included.  The attorney has proposed the affidavit be revised to say:  “I am an individual who is a legal adult and, if sworn, is competent to testify and has personal knowledge of the matters stated herein.”  To better reflect the court rules, the SCAO has proposed the affidavit say:  “This affidavit is made on my personal knowledge and, if I am sworn as a witness, I can testify competently to the facts in this motion and affidavit.”  This will mean all affidavits in motions must be revised accordingly.  The SCAO will designate the forms that might be affected for review by the committee in 2010.

In light of this proposed change, the SCAO suggests that item 2 be revised to better reflect MCR 2.119(B)(1)(b) by adding a parenthetical instruction:  “ … (state with particularity admissible facts establishing or denying this motion)” or something similar. A draft is provided.
           
MC 235, Motion and Order for Destruction of Fingerprints and Arrest Card: Last year the committee reconsidered the effect of McElroy v Michigan State Police on this form and concluded the form was unaffected by the opinion.  The committee was asked to reconsider the issue because an attorney claimed the McElroy opinion clearly indicates that using this form is inappropriate for any dismissal of any nature.  This is based on a view that the court must make a finding of not guilty in order for fingerprints to be destroyed.  The attorney argued that because dismissals are not necessarily the result of a finding of not guilty, the second option in item 1 should be deleted from the form. 

However, this was not the only interpretation the committee considered.  The committee noted that MCL 28.243(12)(h) could allow for dismissal of a case because a person should not have been charged in the first place and there is no basis for the case.  In this instance, if the Michigan State Police has not already destroyed the fingerprints, the court could order them destroyed by using MC 235.

The SCAO continued to research the issue after last year’s committee meeting.  In July 2008, the SCAO received a memorandum setting forth the Michigan State Police’s position on MC 235 and McElroy.  The memo is provided.  After receiving this memo, the SCAO met with representatives from the Michigan State Police.  A summary of that meeting is provided . 

As a result of meeting with the Michigan State Police, the SCAO concluded the following revisions should be made:  (1) delete the second checkbox in item 1, (2) incorporate the exceptions of MCL 28.243(9)(a)-(f) in item 2, and (3) include a note that this form is not to be used in conjunction with an application to set aside an adjudication or conviction (MCL 780.621, MCL 712A.18e). A draft is provided.
Comments Received:
     State Bar of Michigan Committee on Justice Initiatives
     Donald DeNault

MC 238, Judgment after Bond Forfeiture: A request has been made that the language “One quarter of the full bail amount is to be paid by the surety when a 10% cash bond ...”  be revised because it only applies to sureties able to post bond pursuant to MCL 765.6(1) – e.g., bail bond companies and a surety who is actually a “depositor.”  However, no substitute language was proposed.  Therefore, the SCAO has suggested the following language be used:  “If a 10% bond is allowed by the court and a surety bond for one quarter of the full bail amount has been posted by a surety pursuant to MCL 765.6(2), judgment against the surety is limited to that one quarter. The remaining three quarters of the full bail amount plus costs are the responsibility of the defendant/parent, less the amount of cash deposited.”  A draft is provided.  See also the attached e-mail. 

MC 241, Bond: A request has been made that the “Terms and Conditions” section be modified to allow a third party to post bond as though the defendant posted it, so the court may use the bond toward payment pursuant to MCR 6.106(I)(3).  Is this a proper reading of the court rule?  A draft is provided. 

Another request has been made that the form be revised to comply with a September 2007 amendment to MCR 6.106, which provides that, if a defendant violates a condition of bond, other than appearance, the court may enter a judgment against the defendant.  It is asserted that the current language is misleading and that courts are entering judgments against bail agents instead of defendants when defendants are found to have violated a condition of their bond aside from appearance.  It is also claimed that some courts are dictating that bail agents either sign MC 241 as it is, or not post bonds in the county. It has been suggested that the entire “Terms and Conditions” section be deleted and replaced with new language.  Instead, the SCAO proposes the following alternative language:   “I understand and agree if all the terms and conditions on the face and on the back of this bond are not met by the defendant, or in the case of a surety bond if the defendant does not appear in court as required, the full amount of this bond may be forfeited and a judgment entered for the entire amount of the bond.”  However, in light of the interpretation regarding who is a surety, as discussed in agenda item 15 of the Joint Session, perhaps this language applies to all depositors other than the defendant. See the current form.

MC 246, Motion, Affidavit and Summons Regarding Probation Violation: In 1995, the committee agreed that MC 229 (Petition, Affidavit, and Bench Warrant) and MC 230 (Motion, Affidavit, and Order to Show Cause) would be more effectively used for probation violations and DCY 246 was deleted accordingly.  In 2003, DCY 246 was reinstated as MC 246 for use in place of MC 229 and MC 230, primarily because of a Court of Appeals case (Scherf), which made it clear that a bench warrant for probation violation must be supported by affidavit and that MCR 3.606 applied to probation violations for that purpose.  Because many probation officers did not like MC 229, they were creating their own petitions and orders and were not complying with MCR 3.606.  By reinstating the use of MC 246, probation officers were more likely to comply with the rule.  Then in 2004, because of the processing problems with the combined summons and bench warrant, the committee decided MC 229 should be used for issuance of the bench warrant, while MC 246 should be used solely for issuing a summons. 

When this change was made, the committee did not discuss whether issuance of a summons is regulated by MCR 3.606, so the notary was left on the form.  It has been suggested that MCR 3.606 does not apply to probation violations with regard to show cause because it is the probation officer's responsibility to prove to the court that a violation occurred.  Therefore, MCR 3.606 is not the appropriate rule for issuance of a summons after a finding of probable cause.  Based on statute and case law, MCR 3.606 does apply to the issuance of a bench warrant in probation violation proceedings, so MC 229 will continue to be used.  However, because MCR 3.606 does not apply to the issuance of a summons, the court rule citation should be removed from the foot of the form and the jurat removed.  There is no need for the declaration in MCR 2.114 either because the probation officer's motion does not need to be verified.  See the current form.

MC 273, Personal Service on Prisoner and Affidavit: Issues have arisen regarding service on prisoners because, in some facilities, prisoners are being charged for each notarized signature, which may result in prisoners refusing to sign. MCR 2.103(C) says:  “If personal service of process is to be made on a person in a governmental institution, hospital, or home, service must be made by the person in charge of the institution or by someone designated by that person.” 

First, it is suggested the court rule is being interpreted to mean that service isn’t accepted by the warden on behalf of the prisoner, but that the warden must personally serve the prisoner and, therefore, the prisoner should sign and the signature should be notarized.  The SCAO believes that MCR 2.104 does not require an affidavit if the prisoner is willing to sign.  The warden can show proof of personal service on the prisoner by completing the affidavit stating the facts of service – this is why the form includes an affidavit of service.  But if the prisoner acknowledges service, the affidavit does not need to be completed.  To make this clearer, the SCAO suggests adding instructions to the form that state the affidavit of service is prepared only when the prisoner does not acknowledge service.

Second, the Department of Corrections has inquired whether a motion needs to be filed to effectuate service, or whether a request (verbal or written) to the court clerk is sufficient. The SCAO has taken the position that the prisoner does not have to sign the acknowledgment of service; the warden/administrator is under oath that he or she served it on the prisoner and this is sufficient.  A motion does not need to be filed and no “order” is issued.  MC 273 is simply a “request” to the warden/administrator to serve court documents on the prisoner because a process server cannot do so.  An attorney can ask a court clerk to complete the request and, if the court doesn’t want to pay for the cost of mailing it to the warden, the clerk can return it to the attorney, who can mail it to the warden.  A draft is provided (new language underlined).

MC 283, Order for DNA Sample: The Michigan State Police has indicated it is experiencing problems with this form. Specifically, it is having trouble matching samples with cases in those instances where a sample is not required because it has already been taken.  A draft that addresses the MSP’s concerns is provided.            

MC 284, Binding Arbitration Award: The committee is being asked to consider whether to modify the field for judgment interest in the same manner as MC 10, Judgment. See the current MC 284 and MC 10.

MC 287, Financial Statement: A request has been made to add a field for the defendant’s e-mail address.  It is asserted that debt collectors are now using e-mail and text messaging, in addition to telephone contact.  A draft is provided.

MC 304, Order Regarding Alternate Service: A request has been made to expand the use of this form pursuant to MCR 2.107(B)(1)(b).  A draft is provided.
           
MC 307, Order for Service by Publication/Posting and Notice of Action: It has been questioned whether the word “attached” should be deleted from the first line on the Affidavit of Mailing.  The SCAO maintains the language is accurate pursuant to MCR 2.105(I) because the defendant needs to have the original Summons and Complaint along with the Order.  Based on agenda item 28 above, it may be necessary to add references to Summons and Complaint or other paper being served in items 1 through 3 of the Order and also in the Affidavits. See the current form.

New Form, Renewal of Civil Judgment: A request has been made to develop this form pursuant to MCL 600.5809.  A proposed Affidavit Regarding Enforcement of Judgment is provided.  A memorandum from the SCAO regarding renewal of judgment states that a plaintiff can seek a renewal by:  (1)  filing an ex parte motion and paying the motion fee, or (2) filing a summons and complaint and paying the applicable filing fee.  Therefore, the SCAO believes an Affidavit is inappropriate.  The SCAO memorandum is provided . Because a judgment can be renewed by ex parte application pursuant to Van Reken v. Darden, Neef & Heitsch, and successful collection actions toll the limitation period, the SCAO suggests that an Ex Parte Motion and Order be developed.  
Comments Received:
     Donna Beaudet
     Michigan Creditors Bar Association

New Form, Order Allowing Alternate Court Officer to Seize Property: The Michigan Court Officer, Deputy Sheriff and Process Servers Association has suggested it would be beneficial to have an ex parte order to temporarily appoint court officers who are seizing property in a county other than the one to which he/she is officially appointed.  Is this necessary? No draft is provided.
Comments Received:
     Donna Beaudet

New Form, Answer, Landlord-Tenant Proceedings: A request has been made to develop an Answer in landlord-tenant for proceedings involving rental property (except land contracts).  A draft is provided. See also the attached letter.
Comments Received:
   Jiten Ghelani
   Donna Beaudet
   Stephanie Tai

New Form, Order Cancelling Wage Assignment: A request has been made to develop a standard Order to notify employers that a debt has been satisfied and/or voluntary payments are being made.  A draft is provided.

back to top

Circuit Court Session

Verified Pleadings and Declaration Language: Last year the committee asked the SCAO to research the need to include the standard declaration language on various pleadings.  Pursuant to MCR 2.114, only “verified” pleadings require an oath or, in the alternative, the declaration language.  Accordingly, the SCAO recommends the declaration be removed from the following forms because there is no requirement that they be verified:  CC 375, CC 375M, CC 377, CC 377M, CC 378, and CC 379.  Standard language must also be applied to the Proofs of Service on these forms.

CC 265, Notice of Right to Appellate Review and Request for Appointment of Attorney: The issue before the committee is whether to revise the language on the form to better track MCR 6.425(F)(4), which states:  “When imposing sentence in a case in which sentencing guidelines enacted in 1998 PA 317, MCL 777.1 et seq., are applicable, if the court imposes a minimum sentence that is longer or more severe than the range provided by the sentencing guidelines, the court must advise the defendant on the record and in writing that the defendant may seek appellate review of the sentence, by right if the conviction followed trial or by application if the conviction entered by plea, on the ground that it is longer or more severe than the range provided by the sentencing guidelines.” (Emphasis added.)

It has been suggested by the Appellate Defender Commission that the language in the “Notice of Right to Appellate Review” does not advise the defendant exactly as provided in the court rule.  Should the form be modified accordingly? See the current form.

CC 376, Personal Protection Order (Domestic Relationship): The on-line version of this form has been revised to include a use note that says:  “NOTE:  The information in item D is about the respondent, not the petitioner.”  Does the committee want the same note on the paper version of the form?  Or should a note be included on the form’s Instruction page instead? See the current form. Comments Received:
     Gail Michel
     Lisa Nolan

CC 381, Notice of Hearing on Petition for Personal Protection Order: The language that follows “TO THE PETITIONER” should be revised to comply with MCR 3.705(B)(1). When the language was modified in 1999 to accommodate proceedings involving minors pursuant to MCL 712A.2(h), subchapter 3.700 did not apply to minors.  Instead, the language was designed to comply with the requirements of subchapter 3.900.  MCR 3.705(B)(1) became applicable to minors in 2002, and the form should have been revised at that time. See the current form.

CC 387, Order Vacating Conviction and Entering New Disposition: Development of this form is required by MCL 769.16a, as amended by 2008 PA 508, effective January 13, 2009. Use of the form is related to procedures outlined in MCL 770.16, as amended by 2008 PA 410, effective January 6, 2009. A draft is provided.

New Form, Order for Admission to State Bar of Michigan: The State Bar of Michigan has asked the SCAO to adopt a standard Order for circuit courts to use when admitting attorneys to the bar.  It is believed this standard Order will help reduce the incidents of newly-admitted attorneys practicing law in Michigan before they are formally admitted to the State Bar (i.e., before they register with the State Bar and pay their dues).  See the attached e-mail.

The language of the proposed Order would track Rule 15(3) of the Rules Concerning the State Bar of Michigan as follows:  “Pursuant to Rules Concerning the State Bar of Michigan 15, section 3, a person may not lawfully practice law in the State of Michigan without first having become a member of the State Bar of Michigan.”  A draft is provided.

Also, should this be a standard Oath of Office rather than an Order?

back to top

Proposals for Friend of the Court Section
          Published January 29, 2009
          Comment Period Expires February 27, 2009

Verified Pleadings and Declaration Language: Last year the committee asked the SCAO to research the need to include the standard declaration language on various pleadings.  Pursuant to MCR 2.114, only “verified” pleadings require an oath or, in the alternative, the declaration language. The SCAO suggests the declaration language be removed from the following forms because there is no requirement that they be verified:  FOC 2, FOC 2a, FOC 13, FOC 13a, FOC 19, FOC 21, FOC 24, FOC 39d, FOC 40, FOC 43, FOC 45, FOC 47, FOC 50, FOC 51, FOC 61, FOC 65, FOC 66, FOC 68, FOC 78, FOC 79, FOC 81, FOC 85, FOC 87, FOC 88, FOC 100, and FOC 109.

Certificate of Mailing: Last year the committee decided the standard Certificate of Mailing should say: “I certify that on this date I served a copy of this [name of document] on the parties or their attorneys by first-class mail addressed to their last-known addresses as defined in MCR 3.203.”  The SCAO agreed to identify the forms that need the Certificate of Mailing revised and to include notice of them in the 2009 agenda.  The forms include:  FOC 2, FOC 2a, FOC 19, FOC 21, FOC 24, FOC 30a, FOC 40, FOC 43, FOC 45, FOC 47, FOC 50, FOC 51, FOC 61, FOC 65, FOC 66, FOC 68, FOC 78, FOC 79, FOC 81, FOC 85, FOC 87, FOC 88, FOC 92, FOC 102, FOC 103, FOC 104, FOC 106, FOC 107, FOC 109, FOC 110, FOC 111, FOC 112, FOC 113, and FOC 114
Comments Received:
     Robyn Bourgeois

FOC 8, Order for Release for Work or to Seek Work: Last year the committee suggested this form should not be a friend of the court form and recommended it be published in 2009 for possible deletion.  See the attached meeting minutes.  See the current form.

FOC 10/52, Uniform Child Support Order: Item 3 needs revised because the social security benefit credit is misplaced.  Section 3.07 of the Michigan Child Support Formula Manual requires the social security benefit credit be subtracted from the total child-support obligation.  See the attached e-mail.

It has also been asserted that this form does not specifically order anyone to pay child support. Should the form be revised to state this more specifically? See the current form.

FOC 13a, Complaint for Enforcement of Health Care Expense Payment: It has been suggested the form’s title is misleading and court staff may incorrectly label it as a complaint that starts a new cause of action, when that is not the form’s purpose.  The term “complaint” is used in the title of the form because “complaint” is used in MCL 552.511a.  Should the form’s title be changed?

Also, the SCAO suggests that MCL 552.602 be deleted from the foot of the form because the statute no longer defines health-care expense. See the current form
Comments Received:
     Robyn Bourgeois

FOC 23, Verified Statement and Application for IV-D Services: It has been suggested that a provision be included to notify parties a fee is charged when applying for IV-D services.  Because not all parties are charged for IV-D services and parties are given fee information in other ways (e.g., an information package), should this provision be included? See the current form.

FOC 29, Order Allowing Change of Domicile/Legal Residence: A request has been made that the reference to modification of support be deleted in item 2 because friend of the court offices can only accept a Uniform Child Support Order to modify support.  It is suggested that the language in item 2 be changed to: “The support of the minor child(ren) shall be that as contained in the Uniform Child Support Order entered contemporaneously with this Order and incorporated herein by reference.” MCR 3.211(D)(2)(a) provides, “No judgment or order concerning a minor … shall be entered unless either:  (a) The final judgment or order incorporates by reference a Uniform Support Order ….” See the attached e-mail.

The SCAO suggests the committee also consider the following:
(1) The factors in MCL 722.31(4) must be considered by the court and this should be referenced in item 1.
(2) Whether item 1 should be revised pursuant to MCL 722.31(2) and MCR 3.211(C) to clarify that either:  (a) the 100-mile rule does not apply to sole custody situations, or (b) the 100-mile rule only applies to joint custody situations.
(3) Whether the form should provide for situations where less than all the children are removed from the current domicile. 
(4) Whether this is an “order awarding custody.”  If so, MCR 3.211(C)(1)-(3) should be included on the form.
(5) The language in item 5 regarding the parties’ addresses, etc., is not permitted by court rule or statute and should be deleted, unless this is determined to be an order awarding custody. See the current form.
Comments Received:
     Robyn Bourgeois
     Fritzi Barron

FOC 39a, 39b, 39c, and 39d, Friend of the Court Case Questionnaire (pages 1, 2, 3 and 4); FOC 39e, Child Care Verification: The SCAO has suggested the committee thoroughly review the questionnaire due to recent changes in the Michigan Child Support Formula Manual.  Specifically, the committee should address whether:  (1) any requested information should be deleted because it is no longer permitted or necessary (e.g., item 40), (2) any requested information should be revised/updated, and (3) new information should be added, such as cell phone number, e-mail address, and professional licenses.

Pursuant to §3.03 of the Michigan Child Support Formula Manual, effective October 1, 2008, a parenting-time offset is now available. The questionnaire should be revised accordingly to include the number of overnight stays a child has with each party.  See the attached e-mails.

Pursuant to §2.08 of the Michigan Child Support Formula Manual, it has been suggested that space be included on the questionnaire for additional (biological or adopted) minor children, including:  (1) those from a relationship with someone other than the other parent in the case under consideration; (2) those in common with the other parent in this case who live in a third party’s custody, when determining support for children living with either parent; and (3) those in common with the other parent in this case who live with either parent, when determining support for other children in common who live in a third party’s custody.  The SCAO suggests that item 39 may be revised to somehow include this information.  See the attached e-mail.

A request has been made to move the signature line on FOC 39d (page 4) to FOC 39a (page 1) because parties forget to sign the form after it is completed.  It is asserted that placing the signature line at the beginning of the form will help solve this problem.  There currently is a boldface instruction on FOC 39a that says, “Complete this form and sign on page 4.”  Should the signature line be moved to page 1 as suggested?  Or should the current instruction on page 4 be displayed more prominently? See the attached e-mail.

A similar request has been made to move the checkbox for IV-D services on FOC 39d (page 4) to FOC 39a (page 1) so that persons completing the form do not forget to check the box. It is suggested the following language be used:  “USE NOTE:  Complete this form and send the original to the friend of the court.  Keep a copy for yourself. Do not file this form with the office of the clerk of the court.   □ I request child-support services under the child-support-enforcement program of Title IV-D of the Social Security Act. (If you want friend of the court services, you must check this box.)”  See the attached e-mail.

It has been questioned why there are four different form numbers (39a, 39b, 39c, and 39d) when a “complete” questionnaire includes all four forms/pages.  It is asserted that labeling the questionnaire this way causes confusion.  In order to clarify that all four pages are necessary for a “complete” questionnaire, it is suggested the title of the forms indicate “Page 1 of 4,” “Page 2 of 4,” “Page 3 of 4,” and “Page 4 of 4.”  See the attached e-mail.

The SCAO has suggested that FOC 39e, Child Care Verification, be removed from the questionnaire “package” of forms and be given a separate form number (not part of the “39 series”).  It is asserted that accessing the form would be easier this way, and the form is often used without the questionnaire. See the current FOC 39a; FOC 39b; FOC 39c; FOC 39d; and FOC 39e.
Comments Received:
     Robyn Bourgeois

FOC 50, Motion Regarding Support: The SCAO has suggested that item 2 in the Instructions include information about the $40 judgment and order entry fee (in an action where support of minor children is determined).  Some courts require that this fee be paid when the motion is filed.  A draft is provided.

FOC 55, Statement of Account: Last year committee members were asked about the purpose of this form.  The distribution shows a copy going in the court file, but the address in the masthead is the friend of the court.  Typically, when the friend of the court address is in the masthead, it is a form generated by the friend of the court, a copy of which goes in the friend of the court file rather than the court file.  Members indicated the original should go to the requesting party and no copy should go to MiCSES or to the friend of the court because the record is generated from MiCSES and the data can be regenerated whenever necessary; however, members were undecided about placement of the document in the court file.  The SCAO inquired whether this form needed to be SCAO-Approved if its use is merely for the benefit of a party when requested by one of them.  After further discussion, the committee recommended the form be published for possible deletion in 2009.

The SCAO notes the purpose of this form was also questioned in 2004. At that time, committee members decided the form should be changed for use as a “Statement of Account” pursuant to MCL 552.509(5), rather than a “Certificate of Overdue Support.”  Reference to the friend of the court was changed to MiCSES in both the distribution of the form and item 3.

Since last year’s recommendation to possibly delete the form, the SCAO has been advised that, pursuant to MCL 552.1601(1)(c), interstate caseworkers use this form to “certify arrears” and often include a month-by-month printout with it.  Caseworkers have indicated that the form is beneficial because it succinctly clarifies matters for other states.  See the attached e-mail. See the current form.
Comments Received:
     Janet L. Bates
     Fritzi Barron

FOC 70, Determination on Arrearage: Last year the committee considered a suggestion to revise the form to comply with the version used by MiCSES.  The SCAO noted the MiCSES form is supposed to mirror the SCAO-Approved form, and not vice versa.  Committee members discussed the changes and additions made by MiCSES, and indicated they were desirable.  The SCAO inquired whether it was necessary for this form to be SCAO-Approved because it is not filed with the court and is a notice.  The SCAO remarked that the committee had reviewed many of the MiCSES forms several years ago and had identified many forms that could be created and maintained by the Office of Child Support without the need for an underlying SCAO-Approved form.  It was suggested that perhaps this is one of those forms that can be deleted.  Members recommended the form be published in 2009 for possible deletion. See the current form.

FOC 72a, Citizen Advisory Committee Request to Access Friend of the Court Records: Last year the committee was asked if FOC 72a could be considered for possible deletion because there are so few Citizen Advisory Committees and, where they exist, a local administrative order is in place to handle requests for access to friend of the court records.  Committee members agreed to publish the form for possible deletion in 2009. See the current form.

FOC 90, Notice of Lien: Last year the committee discussed whether this form meets the requirements of MCL 565.201, et seq., both substantively and with regard to format.  The SCAO agreed to research the formatting requirements in MCL 565.201(f) to determine whether the form is in compliance; it has examined the form and believes the form satisfies the statutory requirements.  As for the substantive requirements, the committee suggested the actual name of the drafter should be included on the form, indicating that reference to the friend of the court generally as the claimant does not meet the statutory requirements.    

Apparently, some registers of deeds are rejecting this form, claiming it does not comply with the statutes because: (1) there is no line to print or type the name of the person who signs as the “authorized agent or attorney for obligee” and (2) there is no line to print the name of the notary public.  It is asserted the name of the person executing the instrument and the notary public are currently being handwritten or typed underneath the signature lines to ensure compliance.  Pursuant to MCL 565.201a, an instrument “shall contain the name of the person who drafted the instrument and the business address of such person.”  Pursuant to MCL 565.201(1)(a) and (c), a register of deeds “shall not” receive an instrument for recording unless:  (1) the name of each person executing the instrument is legibly printed, typewritten, or stamped beneath the original signature or mark of the person, and (2) the name of the notary public whose signature appears on the instrument is legibly printed, typewritten, or stamped on the instrument “immediately beneath” the signature of that notary.  MCL 565.203 states, “The provisions of paragraphs (a), (c) … of section 1 shall not apply to any instrument upon which the signature itself is printed, typewritten or stamped.”  Should the form include lines for entering the printed, typewritten, or stamped name of the person executing the instrument and of the notary public? Or is the form currently in compliance with the statutes?  See the attached e-mails.

The SCAO also questions whether checkbox “B.” should be deleted if the friend of the court is the only claimant. 

Because FOC 90 is used in conjunction with FOC 91, FOC 92, and FOC 93, any changes to FOC 90 may also require changes to these other forms, so they are included for reference purposes.  See the current FOC 91; FOC 92; and FOC 93.

A request has been made to add a Certificate of Mailing to this form.  It is asserted that (1) courts must currently prepare a separate Certificate of Mailing and it would be more efficient to have it on the form, and (2) a Certificate of Mailing should be on the form in case an issue arises regarding when and to whom the form was mailed.  It is intended that  a copy of FOC 91, Notice of Perfection of Lien, and a copy of FOC 90 are both sent to the payer after FOC 90 has been sent to the person/entity holding the payer’s property.  The Certificate of Mailing on FOC 91 serves as the Certificate of Mailing for FOC 90 (it states that both FOC 90 and FOC 91 were sent to the payer).  In light of that fact, should FOC 90 contain a separate Certificate of Mailing?  See the attached e-mail.

Related to the Certificate of Mailing is the distribution of the form, and the SCAO suggests the committee determine the appropriate distribution.

The form is being republished for comment. See the current form.

FOC 92, Notice to Release Lien: Last year the committee discussed whether this form meets the requirements of MCL 565.201, et seq., both substantively and with regard to format.  The SCAO agreed to research the formatting requirements in MCL 565.201(f) to determine whether the form is in compliance; it has examined the form and believes the form satisfies the statutory requirements.  As for the substantive requirements, the committee suggested the actual name of the drafter should be included on the form, indicating that reference to the friend of the court generally as the claimant does not meet the statutory requirements.  Pursuant to MCL 565.201a, an instrument “shall contain the name of the person who drafted the instrument and the business address of such person.”  Pursuant to MCL 565.201(1)(a) and (c), a register of deeds “shall not” receive an instrument for recording unless:  (1) the name of each person executing the instrument is legibly printed, typewritten, or stamped beneath the original signature or mark of the person, and (2) the name of the notary public whose signature appears on the instrument is legibly printed, typewritten, or stamped on the instrument “immediately beneath” the signature of that notary.  MCL 565.203 states, “The provisions of paragraphs (a), (c) … of section 1 shall not apply to any instrument upon which the signature itself is printed, typewritten or stamped.”  Should the form include lines for entering the printed, typewritten, or stamped name of the person executing the instrument and of the notary public? Or is the form currently in compliance with the statutes?  See the attached e-mails.

Last year the committee also considered whether the declaration needs to be on this form, but was uncertain.  The SCAO was asked to research the requirement and report back to the committee.  The SCAO believes this particular declaration language should remain on the form pursuant to MCL 565.202(b).

Because FOC 92 is used in conjunction with FOC 90, FOC 91, and FOC 93, any changes to FOC 92 may also require changes to these other forms, so they are included for reference purposes. See the current FOC 90; FOC 91; and FOC 93.  

The form is being republished for comment. See the current form.

FOC 95, Findings and Report on Arrearage Payment Amount: Last year when the committee was reviewing this form for various suggested revisions, it decided to table discussion and recommended the form be published in 2009 for possible deletion.  The SCAO requires additional time to research the background on the development of the form and the continued need for the form.  Therefore, it is recommended further discussion on the form be tabled until 2010. See the current form.

FOC 99, Notice of Registration of Out-of-State Child-Custody Determination (UCCJEA): The SCAO has suggested the following revisions to this form:  
(1)  Item 3 – Include the Order date.
(2)  Item 4 – There is no statutory basis for providing two copies (one certified) or a copy of the attachments to the parties and, therefore, it should say, “A copy is attached.”
(3) Item 5 – To better reflect MCL 552.1312, indicate that “a registered custody determination or any order to enforce issued by another state is entitled to full faith and credit, unless the order has been vacated, stayed, or modified.”
(4)  Item 6 – To clarify matters, change the language to:  “A hearing to contest the validity of the registered child-custody determination must be requested within 21 after service of this notice …” (added language underlined).
(5) Request for Hearing – “Check this box to request a hearing …” is redundant of the information below it and should be changed to say, “To request a hearing, check the appropriate box, sign and date the request, and return it to the court at the above address.”
(6)  Request for Hearing – The first checkbox should say, “The issuing court did not have jurisdiction” because MCL 722.1304(4) permits a contest if the issuing court did not have jurisdiction under article 2, whether it’s personal jurisdiction or subject-matter jurisdiction.

See the current form. See also the attached e-mail.
Comments Received:
     Fritzi Barron

FOC 99a, Order Confirming Registration of Out-of-State Child-Custody Determination (UCCJEA): The SCAO has suggested the committee consider including an option for vacating registration in addition to confirming registration.  Can this be accomplished by including a checkbox in the title for “□ Confirming” or “□ Vacating,” changing the form’s title, and adding a checkbox option in the Order section?  Or s hould a separate form be developed and, if so, what is required to be on the form?  It should be noted that, when the Uniform Child Custody Jurisdiction Enforcement Act forms were initially developed, the committee recommended creating only those forms pertaining to registering a foreign order and providing notice of registration because the court rules were unclear regarding procedures and the act had not been in place for long.

It is also suggested the committee consider the following:  
(1) Item 4 – Include findings that follow the grounds for contesting registration, such as: “□ The issuing state lacked jurisdiction to make the determination,” “□ The child-custody determination has been vacated, stayed, or modified by a court of a state having jurisdiction to do so,” “□ The respondent did not receive proper notice before the child-custody determination was issued,” “□ This court lacks jurisdiction to enforce the order” and “□ This court lacks jurisdiction over the respondent." 
(2) Item 6 – “This registered order cannot be contested” should be clarified somehow because it exceeds what is permitted by law.  Further contest of the custody determination/order is prohibited “with respect to any matter that could have been asserted at the time of registration.”  

See the current form. See also the attached e-mail.
Comments Received:
     Fritzi Barron

FOC 100, Domestic Relations Judgment Information: A suggestion has been made that space be added for personal information on third-party custodians/guardians of children (e.g., social security number, address, and telephone number).  It is asserted this would be helpful in divorce cases where there is a third-party custodian/guardian. Do the court rules permit gathering this information from someone who is not a party to the case? If so, is it necessary? See the current form.
Comments Received:
   Tom Whitesell

New Form, Motion to Change Domicile: A request has been made to develop this form.  A friend of the court has asserted she gets numerous calls requesting such a form. Currently, there is only an Order Allowing Change of Domicile/Legal Residence, FOC 29.  The committee has not approved previous requests to develop this form.  See the attached meeting minutes.  No draft is provided.
Comments Received:
     Robyn Bourgeois
     Fritzi Barron

New Form, Order for Interim Effect: It has been suggested that a form be developed pursuant to MCR 3.215(G) for any referee recommendations that will be given interim effect.  Is this necessary? A draft is provided. 
Comments Received:
   Tom Whitesell

back to top

Get the latest version of Internet Explorer. Some of the files on this site are PDF files. To view PDF files, you need Acrobat Reader. Download your free copy here.

Questions about this site should be sent to webinfo@courts.mi.gov.
This site was last updated on .