Michigan Law That Impacts Children with Special Needs

Michigan Law that Impacts Children with Special Needs

Definitions

 MICH. COMP. LAWS . § 400.115f - Michigan Definition of Special Needs Children (h) “Child with special needs” means an individual under the age of 18 years for whom the state has determined all of the following:

(i) There is a specific judicial finding that the child cannot or should not be returned to the home of the child's parents. (ii) A specific factor or condition, or a combination of factors and conditions, exists with respect to the child so that it is reasonable to conclude that the child cannot be placed with an adoptive parent without providing adoption assistance under this act. The factors or conditions to be considered may include ethnic or family background, age, membership in a minority or sibling group, medical condition, physical, mental, or emotional disability, or length of time the child has been waiting for an adoptive home. (iii) A reasonable but unsuccessful effort was made to place the adoptee with an appropriate adoptive parent without providing adoption assistance under this act or a prospective placement is the only placement in the best interest of the child.

 MICH. COMP. LAWS § 722.23. “Best interests of the child” defined. Sec. 3. As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:

(a) The love, affection, and other emotional ties existing between the parties involved and the child. (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (e) The permanence, as a family unit, of the existing or proposed custodial home or homes. (f) The moral fitness of the parties involved. (g) The mental and physical health of the parties involved. (h) The home, school, and community record of the child. (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (l) Any other factor considered by the court to be relevant to a particular child custody dispute.

Child Support

 MICH. COMP. LAWS § 552.605. Child support order; deviation from formula; agreement. Sec. 5. (1) If a court orders the payment of child support under this or another act of the state, this section applies to that order.

(2) Except as otherwise provided in this section, the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau as required in section 19 of the friend of the court act, MCL 552.519. The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:

(a) The child support amount determined by application of the child support formula. (b) How the child support order deviates from the child support formula. (c) The value of property or other support awarded instead of the payment of child support, if applicable. (d) The reasons why application of the child support formula would be unjust or inappropriate in the case.

(3) Subsection (2) does not prohibit the court from entering a child support order that is agreed to by the parties and that deviates from the child support formula, if the requirements of subsection (2) are met.

Support for Disabled Adult-Child (Post Minority Age Support)

 MICH. COMP. LAWS § 552.605b. Child support after 18 years of age. Sec. 5b. (1) A court that orders child support may order support for a child after the child reaches 18 years of age as provided in this section.

(2) The court may order child support for the time a child is regularly attending high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the recipient of support or at an institution, but in no case after the child reaches 19 years and 6 months of age. A complaint or motion requesting support as provided in this section may be filed at any time before the child reaches 19 years and 6 months of age. (3) A support order entered under this section shall include a provision that the support terminates on the last day of a specified month, regardless of the actual graduation date.

(4) A provision contained in a judgment or an order entered before October 10, 1990 that provides for the support of a child after the child reaches 18 years of age, without an agreement of the parties as described in subsection (5), is valid and enforceable to the extent the provision provides support for the child for the time the child is regularly attending high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the recipient of support or at an institution, but in no case after the child reaches 19 years and 6 months of age. This subsection does not require payment of support for a child after the child reaches 18 years of age for any period between November 8, 1989 and October 10, 1990, or reimbursement of support paid between November 8, 1989 and October 10, 1990, in those judicial circuits that did not enforce support for a child after the child reached 18 years of age during the period between November 8, 1989 and October 10, 1990.

(5) A provision contained in a judgment or an order entered under this act before, on, or after September 30, 2001 that provides for the support of a child after the child reaches 18 years of age is valid and enforceable if 1 or more of the following apply:

(a) The provision is contained in the judgment or order by agreement of the parties as stated in the judgment or order. (b) The provision is contained in the judgment or order by agreement of the parties as evidenced by the approval of the substance of the judgment or order by the parties or their attorneys. (c) The provision is contained in the judgment or order by written agreement signed by the parties. (d) The provision is contained in the judgment or order by oral agreement of the parties as stated on the record by the parties or their attorneys.

 Lee v. Smith , 2015 Mich. App. LEXIS 1065 (Mich. Ct. App. 2015). In a case in which a father appealed from a trial court's order requiring him to pay child support in the amount of $580 a month while the parties' son, who had attained the age of majority, attended high school, the appellate court concluded that the father's proposed interpretation of MCL 552.605b(5) would contravene the legislature's clearly expressed intent to authorize courts to order support for a child between 18 and 19-1/2 years of age who is still attending high school as provided in MCL 552.16(2); [2]-MCL 552.605b(5) was not applicable to the circumstances of this case, and the father did not challenge the trial court's determination that the requirements for post-majority child support in MCL 552.16(2) were satisfied.

“MCL 552.605b was added to the SPTEA by 2001 PA 106, effective September 30, 2001. Orders of child support issued pursuant to a judgment of divorce were previously governed by MCL 552.16. In Smith v Smith, 433 Mich 606; 447 NW2d 715 (1989), our Supreme Court interpreted multiple provisions of Michigan's divorce laws, MCL 552.1 et seq., including MCL 552.16, and the Age of Majority Act, MCL 722.51et seq. The Court held that Michigan law did not authorize courts to order post-majority child support for a child over the age of [3] 18. Id.at 632-633. Although the Supreme Court's decision in Smith prevented courts from independently ordering post-majority child support, the decision did not preclude courts from enforcing an agreement by the parties to pay such support. Holmes v Holmes, 281 Mich App 575, 590-592; 760 NW2d 300 (2008); Aussie v Aussie, 182 Mich App 454, 464; 452 NW2d 859 (1990).”

 Holmes v. Holmes , 281 Mich. App. 575 (Mich. App. Ct. 2009). The husband and wife divorced and entered into an agreement regarding the husband's child support obligation. Under their agreement, the husband was to pay a certain amount each month, plus 25 percent of any net bonus he received each year. Although the husband was to have custody of the children a substantial amount of the time, he agreed to waive application of the shared economic responsibility formula (SERF) for 10 years. The husband moved to modify his support obligation by applying SERF, and the circuit court granted his motion. On review, the court held that, while private agreements that limited a parent's obligation to pay child support were disfavored, the courts would enforce a voluntary agreement to pay additional child support. Because the child support guidelines set forth a parent's minimum support obligation, a contract enhancing a parent's support obligation should be enforced, absent a compelling reason to forbear. Therefore, the circuit court erred in refusing to enforce the voluntary agreement of the parents, two attorneys, despite the absence of any evidence that enforcement would create a hardship for the husband.

Custody and Modification of Custody

 MICH. COMP. LAWS § 722.27(1). Child custody disputes; powers of court; support order; enforcement of judgment or order. Sec. 7. (1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:

(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. Subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, the court may also order support as provided in this section for a child after he or she reaches 18 years of age. The court may require that support payments shall be made through the friend of the court, court clerk, or state disbursement unit.

(b) Provide for reasonable parenting time of the child by the parties involved, by the maternal or paternal grandparents, or by others, by general or specific terms and conditions. Parenting time of the child by the parents is governed by section 7a. (c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. If a motion for change of custody is filed during the time a parent is in active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child’s placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child. Upon a parent’s return from active military duty, the court shall reinstate the custody order in effect immediately preceding that period of active military duty. If a motion for change of custody is filed after a parent returns from active military duty, the court shall not consider a parent’s absence due to that military duty in a best interest of the child determination.

(d) Utilize a guardian ad litem or the community resources in behavioral sciences and other professions in the investigation and study of custody disputes and consider their recommendations for the resolution of the disputes.

(e) Take any other action considered to be necessary in a particular child custody dispute.

(f) Upon petition consider the reasonable grandparenting time of maternal or paternal grandparents as provided in section 7b and, if denied, make a record of the denial.

Special Needs Trust and a Ward’s Estate

 Children With Special Needs Fund There is no specific statute that governs this fund but information about it can be found at http://www.michigan.gov/csnfund/0,4553,7-156--236380--,00.html. This fund is available for qualifying children and it provides equipment that promotes mobility.

 Special Needs Trust Michigan does not have a specific statute regarding special/supplemental needs trusts. However, the State does have § 700.7103 which defines a discretionary trust: (d) “Discretionary trust provision” means a provision in a trust, regardless of whether the terms of the trust provide a standard for the exercise of the trustee's discretion and regardless of whether the trust contains a spendthrift provision, that provides that the trustee has discretion, or words of similar import, to determine 1 or more of the following:

(i) Whether to distribute to or for the benefit of an individual or a class of beneficiaries the income or principal or both of the trust. (ii) The amount, if any, of the income or principal or both of the trust to distribute to or for the benefit of an individual or a class of beneficiaries. (iii) Who, if any, among a class of beneficiaries will receive income or principal or both of the trust. (iv)Whether the distribution of trust property is from income or principal or both of the trust. (v) When to pay income or principal, except that a power to determine when to distribute income or principal within or with respect to a calendar or taxable year of the trust is not a discretionary trust provision if the distribution must be made.

 Michigan recognizes D4A trusts as it appeared in Buko v. Munger, 290708, 2010 WL 5174760 (Mich. Ct. App. 2010).

 In re Hertsberg Inter Vivos Trust , 578 N.W.2d 289 (Mich. 1998). Department of Mental Health sought reimbursement from trust for cost of care provided to developmentally disabled trust beneficiary. The Probate Court, Oakland County, Sandra G. Silver, J., found that beneficiary was trust's settlor, and Department could seek reimbursement from trust. Trustee appealed. The Court of Appeals, reversed, and Department appealed by leave granted,456 Mich. 869, 569 N.W.2d 161. The Supreme Court, Weaver, J., held that beneficiary was also settlor of trust, although the trust agreement recited that beneficiary's mother was grantor of the trust, and mother transferred to trustee the assets that funded the trust.

Adoption Subsidy

 MICH. COMP. LAWS § 400.115l. The department shall enter into an agreement with the adoptive parent or parents of a child with special needs under this section for the payment of nonrecurring adoption expenses incurred by or on behalf of the adoptive parent or parents. The agreement may be a separate document or part of an adoption assistance agreement under section 115i.1 The agreement under this section shall indicate the nature and amount of nonrecurring adoption expenses to be paid by the department, which shall not exceed $2,000.00 for each adoptive placement meeting the requirements of this section. The department shall make payment as provided in the agreement.

Other Laws

 MICH. COMP. LAWS § 380.1751, 20 U.S.C.A. § 1401. This statute requires every school board to provide special education programs for students with disabilities.

 MICH. COMP. LAWS § 380.1711 This statute requires the intermediate school board to develop and carry out a plan for special education programs. The school board is required to maintain a record of all programs that were delivered to the student with special needs. In addition this statute requires that the school board use funds or contributions from government or private sources to provide special education programs.

 MICH. COMP. LAWS § 333.9315 This statute provides for an advisory committee consisting of health professionals who will assist the department with carrying out programs for children with disabilities.

 Barwacz v. Michigan Dep't of Educ. , 681 F. Supp. 427 (W.D. Mich. 1988). Student's mother sought judicial review of decision of state administrative agency not to reimburse mother under the Education for All Handicapped Children Act for cost of transporting severely hearing impaired child to specialized school for deaf. The District Court, Enslen, J., held that: (1) district court's receipt of additional evidence not presented at administrative level did not improperly change character of district court proceeding to that of trial de novo, but (2) plaintiff failed to show that individualized education program designed and approved by state Department of Education officials failed to maximize student's potential in “least restrictive environment”within meaning of the Education for All Handicapped Children Act.

 Renner v. Board of Educ. of Public Schools of City of Ann Arbor , 185 F.3d 635 (6th Cir. 1999). While under Michigan law requirements of Individuals with Disabilities Education Act (IDEA) are enhanced to require that disabled student's individualized educational plan (IEP) be designed to develop his or her maximum potential, term “maximum potential” has not been well defined and may be more precatory than mandatory, in that it does not necessarily require best education possible.

 Kuszewski ex rel. Kuszewski v. Chippewa Valley Schools , 131 F.Supp.2d 926 (E.D. Mich. 2001). Michigan school district satisfies its obligation to disabled student if: (1) it complies with procedures set forth inIndividuals with Disabilities Education Act (IDEA); (2) individualized educational plan (IEP) developed through IDEA's procedures is reasonably calculated to enable child to receive educational benefits; and (3) IEP is designed to develop maximum potential of child.

State and Community Resources

 Autism Alliance of Michigan The mission of the Autism Alliance of Michigan is to lead an unprecedented collaboration that will improve the quality of life for individuals with autism and their loved ones through education, comprehensive services, coordinated advocacy, dedication to community, and navigation. The long-term vision of the Autism Alliance of Michigan is to ensure high quality services, remove roadblocks and create opportunities for all individuals impacted by autism so that they may lead purposeful and fulfilling lives. autismallianceofmichigan.org

 Bridges 4 Kids: Building Partnerships Between Families, Schools, and Communities A non-profit parent organization providing a comprehensive system of information and referral for parents and professionals working with children from birth through transition to adult life. Bridges4Kids also supports non-profits that share our mission with web design, data collection, telephone referral services and technical assistance. Bridges4Kids operates a comprehensive website providing parents, educators, and others the information they need to help children who might be at-risk or have special needs. It is updated daily and includes information on child development, education issues and opportunities, and extensive disability, gifted, at-risk, parenting, and teaching resources. www.bridges4kids.org/About.html

 Friendship Circle of Michigan Friendship Circle of Michigan is a non-profit organization affiliated with Lubavitch of Michigan. Our goal is to provide every individual with special needs the support friendship and inclusion that they deserve. What we do Friendship Circle provides assistance and support to 3,000 individuals with special needs and their families by providing recreational, social, educational and vocational programming. In addition to helping those in need, the Friendship Circle enriches its vast network of volunteers by enabling them to reap the rewards of selfless giving. Friendship Circle also provides support to individuals and families struggling with isolation, addiction and other family- related crises. www.friendshipcircle.org

 Grand Rapids Kids Website provides various resources on developmental concerns for Grand Rapids families relating to the following topics: o Resources for Social, Personal and Emotional Support o Help with Developmental Delays o Early Start o Parent Support and Counseling Services o Resources for Healthcare o Facebook Support Groups grkids.com/special-needs-resources-guide-for-grand-rapids-families/

 Hero Source A Southeast Michigan's Directory & Review Site for Special Needs & Learning Differences. Discover the people, places, and activities that support your unique family. As parents of children with special needs and learning differences, we know how difficult it can be to find the services, support and activities that are right for our families. Finding help shouldn’t be a full time job, but it can be. A common phrase we heard from other parents like us, and thought often ourselves, was "why isn't there one place to find all this stuff?" So, we set out to change that for Southeast Michigan families and built HeroSource.com - a free site committed to giving our special needs community one place to find and learn about the everyday heroes working to help support the heroes in your life. Hero Source can help you find local clinicians, therapists, educational advocates, recreational activities, support groups, products, apps and more - all serving the special needs community. Hero Source can also help you learn what others have experienced by reading provider reviews written by parents and caregivers just like you. herosource.com

 Michigan Alliance for Families: Information, Support, and Education Michigan Alliance for Families is a statewide resource to connect families of children with disabilities to resources to help improve their children’s education. We help facilitate parent involvement as a means of improving educational services and outcomes for students with disabilities. Michigan Alliance can assist you in knowing your rights, effectively communicating your child’s needs, and advising how to help them develop and learn. www.michiganallianceforfamilies.org

 Michigan Disability Resources o Michigan Department of Education, Special Education & Early Intervention ServicesThe Office of Special Education and Early Intervention Services (OSE- EIS) oversees the administrative funding of education and early intervention programs and services for young children and students with disabilities. o Michigan School for the DeafThe Michigan School for the Deaf is to provide academics and social excellence - rich in ASL and English literacy for all students from infancy to graduation, to be the leader in educating Deaf and Hard of Hearing children in Michigan, and to provide services to their families and the community. o Michigan Career and Technical InstituteThe Michigan Career and Technical Institute (MCTI) conducts vocational and technical training programs and provides the supportive services needed to prepare Michigan citizens with disabilities for competitive employment. o Bureau of Services for Blind PersonsThe Bureau of Services for Blind Persons works hard at achieving its mission, which is to provide opportunities to blind individuals to achieve employability and/or function independently in society. o Michigan Bureau of Services for Blind Persons Training CenterThe Michigan Bureau of Services for Blind Persons Training Center (BSBP) provides training and services to blind and visually impaired residents of the state of Michigan and elsewhere. Bureau staff believe in the capabilities of individuals who are blind to participate in every activity of daily living. www.michigan.gov/disabilityresources/0,4563,7-223-40853---,00.html

 Post Adoption Resource Center We provide the following services

o Time limited adoption sensitive case management and crisis intervention services o 24 hour telephone access for adoptive families looking for support services o Information and referrals to appropriate community services o Liaisons for adoptive families with community services o Support groups for adoptive families and adopted children o Educational seminars for adoptive families

Who qualifies? If you are an adoptive family who: o Has an adopted child(ren) who is currently under age 21 and was adopted from the Michigan child welfare system OR are raising children who are 18 years or younger from the Michigan child welfare system who are receiving guardianship assistance through the DHS adoption subsidy office. o Currently lives in one of the supported counties. o Needs adoption sensitive supportive services. www.parc- judson.org/ResourceList/tabid/621/articleType/CategoryView/categoryId/73/Children- with-Special-Needs

 Special Needs Resource Project List of various advocacy. military, government, non-profit and other types of resources. www.snrproject.com/Resource/Links/Michigan

 The Arc Michigan The Arc Michigan facilitates a statewide network of local chapters assisting persons with developmental disabilities and their families through education, training, technical assistance and advocacy. www.arcmi.org/new/info.htm