The Friend of the Court (“FOC”) provides services to parties with minor children involving divorce, custody, support, alimony and paternity cases. The Friend of the Court is also responsible for investigating and making recommendations in regard to child custody, support and parenting time. It is important to remember that a FOC recommendation is simply that and you can object to the Friend of the Court recommendation.
On July 27, 2022, this notion was reaffirmed by the Michigan Court of Appeals in the published opinion of Butters v. Butters. In the case, Mr. Butters petitioned the court for a change of custody and a hearing was held with the Friend of the Court over a four day period. Ms. Butler filed an objection to the Friend of the Court Recommendation.
Under Michigan law, a Friend of the Court Recommendation becomes an Order of the Court if neither party files a timely objection. However, once a party files an objection, the trial court must conduct a de novo hearing (a new hearing).
The trial court denied the request for a new hearing for two reasons. First, because the formatting of the objections used the wrong font size and second, because the trial court reasoned that the parties had a full opportunity to argue the case inf rom of the referee. The Michigan Court of Appeals disagreed stating that a formatting violation is not a basis to deny a new hearing and by failing to conduct a new hearing (regarding the objections to the Friend of the Court Recommendation).
Under MCL 552.507(4), if a party timely objects to a referee’s recommendation, the trial court “shall hold a de novo hearing.” The Michigan Court of Appeals further decided that a trial court cannot simply review the record created at the referee hearing, however the trial court can impose reasonable restrictions on duplicative evidence (e.g. only allowing new evidence).
Prior to the Butler case¸ a trial court would sometimes inform the litigants that they have reviewed the record, if there is no new evidence, they are affirming the decision of the referee. However, the Butler decision prohibits this practice moving forward. The Court of Appeals stating:
“. . . the trial court’s ability to limit the evidence presented in a de novo hearing does not stand for the proposition that that the court can do away with the hearing unless the party requesting the hearing intends to present new evidence.”
Butters v. Butters, decided July 27, 2022.
The key learning in this case is that if the FOC issues a recommendation, you can object to the Friend of the Court and demand a new hearing in front of the elected trial court judge.
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