Several regular contributors to the State Bar of Michigan's online discussion group have made some acute observations about requests to opt out of Friend of the Court services. These observations are crucial for men and women who are considering such an opt out. They are also food for thought for family lawyers faced with such a request from a client:
Jeffrey Zoeller, an experienced family lawyer from Lansing, Michigan said:
I am always suspicious when a client asks me about about a request from the other parent to opt out of FOC services. That raises a red flag.
In such cases, I inquire most thoroughly of the client to make sure there is no domestic violence, emotional abuse, uneven bargaining position, or great financial disparity between the parents. Any of those things may render a family law client under duress such that the agreement should be set aside in all fairness.
In the family law, the concept of duress must be somewhat more flexible that it is in ordinary contract law. Duress is one thing in the context of how two parties treat each other in an ordinary contract situation, but duress may be another thing entirely in the context of how two parents treat each other in a custody case.
There is much more at stake for a litigant when they ‘negotiate’ custody with the other parent than there is at stake when two strangers negotiate a contract.
That is why I think FOC 101 is a really good thing. [This is the document that fully explains all of the FOC services that a party gives up if they opt out.] It gives you a chance to talk with your client to see if the client’s decision to opt out of FOC services is truly voluntary.
Most times the requests I see from child support payors to opt out of FOC services come from child support payors who are trying to bully the payee to agree to reduce the payee’s child support, or who are otherwise trying to tax advantage their child support obligation to benefit themselves and to push the tax detriment onto the other parent.
/s/ Jeffrey Zoeller
Elizabeth Bolden, a relatively new family lawyer, but offers this excellent advice and cautions family lawyers:
This is a matter where CYA is very important. And, I might be very paranoid
but whenever I see the possibility of me having to defend a grievance or
malpractice case I become OCD about paperwork and
I agree with Jeff you have to inquire about the motives
behind the request to opt out of FOC, especially when you are offering
legal representation and not mere document preparation (and I believe we
can agree there is a distinction). I think it is highly important to have the FOC discussion with your client that includes ascertaining their feelings about FOC, money, the ex's fiscal responsibility, living arrangements, and all those other points on the FOC opt out form. I think it is important to go over the child support guidelines to establish the baseline of support and inform client that agreed upon support falls below or above baseline. Ask about support payments pending divorce ... if payor hasn't paid on time or shorted support payments.. why would you agree to opt out?! You will find that many individuals have ill-regards for FOC or are misinformed. You have to question, question, question and then document, document, document.
Also, as a new attorney and solo, I found it very useful to
have a more experienced attorney peer review my documents. Of course
this means you have to have the document prepared well in advance to
the reviewing attorney time to give feedback, but doing so is so much worth it.
Jeffrey Zoeller, responded:
Very good post. You are right to be very careful in such circumstances.
Family law is not like any other area of the law. Duress can continue long after one parent gets free of the abusive or controlling other parent.
The abusive or controlling other parent still has some control of
the other parent long after the parents separate. This previously established
control lingers in the mind of the other parent and sometimes makes the other
parent feel afraid when the abusive parent threatens to get custody or reduce
other parent's child support.
These threats by abusive parents seem common. They worry the other parent no matter how absurd they may seem to us as family law lawyers.
Sometimes, I feel more of a duty to the children than to my client when the client is still somewhat under the control of the abusive spouse.
I ask myself whether my advice to my client might work for the client and for the children to make things better for them or whether a Guardian ad Litem for the children might be needed.
/s/ Jeffrey Zoeller
Good advice from both attorneys! If you've agreed to opt out, remember, if things go wrong, you can always opt back in. And if one of the parties begins to receive support from the State, the FOC is going to bring you back into the system.
You can review the Advice of Rights, FOC 101, here. Read it carefully. You give up many valuable rights when you opt out.
Here's the form to use if you want to Opt back in to Friend of the Court services. FOC 104
If you need help with these issues, don't hesitate to give me a call or email me at firstname.lastname@example.org