Incarceration and the Friend of the Court
The State Bar of Michigan has published a brochure to assist those parents have criminal records. This brochure will help you understand your rights as a parent if you are facing criminal charges, if you have a criminal record, or if you are currently incarcerated in jail or in prison.Back to Top
Rights of the Incarcerated
The law in Michigan speaks directly to the rights of those incarcerated in issues of custody, parenting time and/or support.Back to Top
Responsibility of the Incarcerated
Generally speaking, if you have been sentenced to incarceration for a period of time to exceed one year, you should immediately notify the Friend of the Court in writing and request the Friend of the Court to review your child support obligation.
If you have been sentenced to incarceration for a period of less than one year of time, your notice to the Friend of the Court of the same may not automatically trigger the review of your child support obligation. In that instance, you will need to file a motion with the Court to have your child support obligation reviewed. However, if you have not had your child support obligation reviewed within the last three years, you may request the Friend of the Court to review your child support obligation without having to file a motion.
Most likely, the effective date of any change to your support obligation will be the first month following the entry of the order, in the absence of filing a motion.Back to Top
Current Case Law and Statutory Law Regarding Retroactive Child Support Modification
Payments due under a support order are not subject to retroactive modification; they may be modified only from the date that notice of a petition for modification was given to the other party. MCL 552.603(2).
Your child support order will only be modified when and if the Court issues an order modifying your child support obligation. Notice to the Court of your incarceration, and even a child support review conducted by the Friend of the Court, does not change your child support obligation unless and until the Court issues an order directly providing for such a modification.
In McLaughlin v McLaughlin, 255 Mich App 475, 660 NW2d 784 (2003), the defendant requested the court to retroactively terminate his child support obligation for the period he was incarcerated. The motion was denied and the appellate court affirmed, holding that retroactive modification of child support for the period of incarceration was prohibited by MCL 552.603(2). This is a common problem, as many prisoners do not seek termination of support until after they are released and enforcement action is taken. This case affirms that no relief will be available if prisoners fail to petition at the start of incarceration.
Michigan statute MCL 552.517, section 1(b), effective June 30, 2005, provides that notice to the Friend of the Court of incarceration or release from incarceration after a criminal conviction and sentencing to a term of more than 1 year shall be considered a triggering event to obtain a child support review. Within 14 days after receiving information as described in this subsection, the office shall initiate a review of the child support order.
Locating an Incarcerated Person:
In order to determine if a person is incarcerated in a Michigan correctional facility, you may check the following website Department of Corrections OTIS Offender Tracking Information System: http://www.michigan.gov/corrections/0,1607,7-119-1409---,00.html
If the person is located in the Federal Bureau of Prisons, you may check the following website to help you locate that individual: http://www.bop.gov.
If a person is located in a penitentiary in another state, that state may also have a web site dedicated to offender information.
If a person is detained in a County correctional facility, you would need to conduct an independent search of each facility.
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