2.12Special Notice Provisions for Incarcerated Parties
Where a party is incarcerated and under the jurisdiction of the Michigan Department of Corrections, that party is entitled to specific notice requirements. See MCR 2.004. See also In re BAD, 264 Mich App 66, 75-76 (2004) (finding MCR 2.004 does not apply to departments of correction in other states or jurisdictions).
Specifically, MCR 2.004 applies to:
(1) Domestic relation cases that involve minor children;
(2) Cases involving custody, guardianship, neglect, or foster care placements of minor children; and
(3) Cases involving the termination of parental rights. MCR 2.004(A).
A petitioner must:
(1) Contact the Department of Corrections to confirm that the party is indeed incarcerated;
(2) Confirm the incarcerated party’s prison identification number and location;
(3) Serve the incarcerated party;
(4) File proof of service with the court;
(5) File the petition or motion with the court stating that the party is incarcerated and providing the incarcerated party’s prison identification number and location; and
(7) Ensure that the petition’s or motion’s caption states that a “telephonic or video hearing is required by this rule[.]” MCR 2.004(B).
“When all the requirements of [MCR 2.004(B)] have been accomplished to the court’s satisfaction, the court shall issue an order requesting the department, or the facility where the [incarcerated] party is located if it is not a department facility, to allow [the incarcerated party] to participate with the court or its designee by way of a noncollect and unmonitored telephone call or by videoconferencing technology in a hearing or conference, including a friend of the court adjudicative hearing or meeting. The order shall include the date and time for the hearing or conference, and the [incarcerated party’s] name and prison identification number, and shall be served at least 7 days before the hearing or conference by the court upon the parties and the warden or supervisor of the facility where the incarcerated party resides.” MCR 2.004(C).
“The initial telephone call or videoconference shall be conducted in accordance with [MCR 2.004(E)]. If the [incarcerated party] indicates an interest in participating in subsequent proceedings following an initial telephone call or videoconference pursuant to [MCR 2.004(E)], the court shall issue an order in accordance with this subrule for each subsequent hearing or conference.” MCR 2.004(C).
“The purpose of the initial telephone call or videoconference with the incarcerated party, as described in [MCR 2.004(C)], is to determine[:]
(1) whether the incarcerated party has received adequate notice of the proceedings and has had an opportunity to respond and to participate,
(2) whether counsel is necessary in matters allowing for the appointment of counsel to assure that the incarcerated party’s access to the court is protected,
(3) whether the incarcerated party is capable of self-representation, if that is the party’s choice,
(4) how the incarcerated party can communicate with the court or the friend of the court during the pendency of the action, and whether the party needs special assistance for such communication, including participation by way of additional telephone calls or videoconferencing technology as permitted by the Michigan Court Rules, and
(5) the scheduling and nature of future proceedings, to the extent practicable, and the manner in which the incarcerated party may participate.” MCR 2.004(E).
C.Documentation and Correspondence to Incarcerated Party
“All court documents or correspondence mailed to the incarcerated party concerning any matter covered by this rule shall include the name and the prison number of the incarcerated party on the envelope.” MCR 2.004(D).
If the requirements of MCR 2.004 are not satisfied, the court may not grant the relief requested by the moving party. MCR 2.004(F). However, a court may take immediate action it deems necessary to temporarily protect a minor child. Id.
An incarcerated party must be offered the opportunity to participate in the proceedings through a telephone call or video conference. See MCR 2.004(F). The opportunity must be offered for each proceeding, and “participation through ‘a telephone call’ during one proceeding will not suffice to allow the court to enter an order at another proceeding for which the [incarcerated party] was not offered the opportunity to participate.” In re Mason, 486 Mich 142, 154-155 (2010) (noting that “[e]ach proceeding generally involves different issues and decisions by the court”).
“[E]xcluding a[n incarcerated party from the opportunity to participate] for a prolonged period of the proceedings can[not] be considered harmless error.” In re DMK, 289 Mich App 246, 255 (2010).
“The court may impose sanctions if it finds that an attempt was made to keep information about the case from an incarcerated party in order to deny that party access to the courts.”MCR 2.004(G).