Things to Know If You Have Been Sentenced to Incarceration
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.
Generally, In the above cases any reduction of your child support obligation shall only be effective from the date you provided written notice to the Friend of the Court of your incarceration.
Current case law and statutory law regarding retroactive child support modification
Generally, 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 State correctional facility, you may check the following website Department Of Corrections OTIS Offender Tracking Information System
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 detained in a County correctional facility, you would need to conduct an independent search of each facility.
MCL 552.517 is Reprinted in its Entirety Below
552.517 Review of child support order after final judgment; notices and conduct of review; modification order; certain determinations requiring report; contents of report; petition for modification; scheduling of hearing; objection to determination of no change in order; petition to require dependent health care coverage; costs.
(1) After a final judgment containing a child support order has been entered in a friend of the court case, the office shall periodically review the order, as follows:
(a) If a child is being supported in whole or in part by public assistance, not less than once each 36 months unless both of the following apply:
(i) The office receives notice from the department that good cause exists not to proceed with support action.
(ii) Neither party has requested a review.
(b) At the initiative of the office, if there are reasonable grounds to believe that the amount of child support awarded in the judgment should be modified or that dependent health care coverage is available and the support order should be modified to include an order for health care coverage. Reasonable grounds to review an order under this subdivision include temporary or permanent changes in the physical custody of a child that the court has not ordered, increased or decreased need of the child, probable access by an employed parent to dependent health care coverage, or changed financial conditions of a recipient of support or a payer including, but not limited to, application for or receipt of public assistance, unemployment compensation, or worker's compensation; or incarceration or release from incarceration after a criminal conviction and sentencing to a term of more than 1 year. Within 14 days after receiving information that a recipient of support or payer is incarcerated or released from incarceration as described in this subsection, the office shall initiate a review of the order. A review initiated by the office under this subdivision does not preclude the recipient of support or payer from requesting a review under subdivision (d).
(c) At the direction of the court.
(d) Upon receipt of a written request from either party. Within 14 days after receipt of the review request, the office shall determine whether the order is due for review. The office is not required to investigate more than 1 request received from a party each 36 months.
(e) If a child is receiving medical assistance, not less than once each 36 months unless either of the following applies:
(i) The order requires provision of health care coverage for the child and neither party has requested a review.
(ii) The office receives notice from the family independence agency that good cause exists not to proceed with support action and neither party has requested a review.
(f) If requested by the initiating state for a recipient of services in that state under title IV-D, not less than once each 36 months. Within 14 days after receipt of a review request, the office shall determine whether an order is due for review.
(2) Within 180 days after determining that a review is required under subsection (1), the office shall send notices as provided in section 17b, conduct a review, and obtain a modification of the order if appropriate.
(3) The office shall use the child support formula developed by the bureau under section 19 in calculating the child support award.
(4) The office shall petition the court if modification is determined to be necessary unless either of the following applies:
(a) The difference between the existing and projected child support award is within the minimum threshold for modification of a child support amount as established by the formula.
(b) The court previously determined that application of the formula was unjust or inappropriate and the office determines that the facts of the case and the reasons and amount of the prior deviation remain unchanged.
(5) The notice under section 17b(3) constitutes a petition for modification of the support order and shall be filed with the court.
(6) If the office determines there should be no change in the order and a party objects to the determination in writing to the office within 21 days after the date of the notice provided for in section 17b(3), the office shall schedule a hearing before the court.
(7) If a support order lacks provisions for health care coverage, the office shall petition the court for a modification to require that 1 or both parents obtain or maintain health care coverage for the benefit of each child who is subject to the support order if either of the following is true:
(a) Either parent has health care coverage available, as a benefit of employment, for the benefit of the child at a reasonable cost.
(b) Either parent is self-employed, maintains health care coverage for himself or herself, and can obtain health care coverage for the benefit of the child at a reasonable cost.
(8) The office shall determine the costs to each parent for dependent health care coverage and child care costs and shall disclose those costs in the recommendation under section 17b(3).