FOC 88 Response to Motion Regarding Custody (Michigan): how to fill it out, item by item

A walkthrough of the one-page Michigan form for answering an FOC 87 custody motion: agreeing or disagreeing with the change of circumstances, proper cause, any agreement, and the order asked for, and the certificate of mailing.

Researched by Dan Martin, Legal Researcher · Published by Onbello Legal

Quick answer

FOC 88, Response to Motion Regarding Custody, is the State Court Administrative Office form for answering a Motion Regarding Custody (FOC 87) in Michigan. It is one page with seven numbered items: you say whether you agree that circumstances have changed (item 4) and that proper cause exists (item 5), whether you agreed with the other party on custody, parenting time and support (item 6), and whether you agree with what the motion asks for or want something else (item 7). The note printed on FOC 87 says the person receiving the motion may file a response; under MCR 2.119(C)(2)(a) a response served by first-class mail must be served at least 5 days before the hearing, and the instructions say you must attend the hearing.

Summary: what FOC 88 does, and what you need first

FOC 88 answers an FOC 87, Motion Regarding Custody. The instructions say that by filling it out you are answering the statements made in the motion.
Have the motion and its notice of hearing in front of you. Instructions A and B say to copy the case number and the names from the motion, and the hearing date sets your deadline.
The deadline runs back from the hearing. MCR 2.119(C)(2) says a response must be served at least 5 days before the hearing by first-class mail, or 3 days by delivery, and MCR 2.119(C)(4) says it must be filed at least 3 days before the hearing, unless the court sets a different time.
Items 4 and 5 are where you contest the threshold. Under MCL 722.27(1)(c) and Vodvarka v Grasmeyer, 259 Mich App 499 (2003), the court cannot reach the best interest factors unless the moving party proves proper cause or a change of circumstances.
Write your explanations on separate sheets if needed. The instructions say to make four copies of each sheet to attach to four copies of the form.
Take the original and five copies to the county clerk in the county where the motion was filed, per the instructions.
Mail a copy to the other party, and to any other custodian or guardian, by first-class mail, then complete the certificate of mailing on the remaining copies.
Attend the hearing. The instructions say you must, and that you should bring your copy of the motion, your response, your supporting papers, and any witnesses.

The full form

All 1 pages of FOC 88 (Rev. 6/17) as the court prints them. Open a page to read it full size; the walkthrough below shows the matching part of the form under each item.

Page 1

What FOC 88 is, and where a response can make a difference

Response to Motion Regarding Custody (FOC 88) is the form response to FOC 87. MCL 552.505(1)(d) requires each friend of the court office to make available form motions, responses, and orders for a party who wants to make or respond to a motion to modify custody without a lawyer, with instructions on filing and service. The note printed on FOC 87 tells the person receiving the motion to contact the friend of the court office and request form FOC 88.

The response follows the motion item by item. Items 1 through 3 restate what the current order says and where the children live, items 4 and 5 answer the motion’s grounds, item 6 answers any agreement the motion describes, and item 7 says whether you agree with the order the motion asks for. MCR 3.213 says postjudgment motions in domestic relations actions are governed by MCR 2.119, which sets the time for serving and filing a response.

The threshold is the moving party’s to prove. MCL 722.27(1)(c) lets the court modify a custody order for proper cause shown or because of change of circumstances, and Vodvarka v Grasmeyer holds that the moving party must prove one of them by a preponderance of the evidence before the court considers the established custodial environment and the best interest factors. Vodvarka also holds that a change of circumstances must have occurred after the last custody order and must be more than the normal life changes that occur during a child’s life.

The court decides whether testimony is needed. MCR 3.210(C)(8) says that in deciding whether an evidentiary hearing is necessary on a postjudgment motion to change custody, the court must determine, by an offer of proof or otherwise, whether there are contested factual issues. A response that says which facts you dispute, and why, is how those issues get in front of the court.

This page is public legal information, not legal advice, and Onbello is not a law firm. The item numbers and labels below are those printed on the Michigan State Court Administrative Office (SCAO) form (FOC 88, Rev. 6/17). Procedures differ by county. If you can afford an attorney, we encourage you to hire one.

FOC 88 item by item

FOC 88 is a single page. The circled letters A through K printed in the left margin match the item letters in the instructions packet (INST FOC 88), which explains each one on its page 6; the numbers 1 through 7 are the form’s own items. Item numbers and wording below are the ones printed on the form.

When an item runs out of room

Items 4, 5, 6 and 7 each print a line telling you to use a separate sheet of paper if needed and attach it. The instructions say to print the sheet as neatly as you can and to make four copies of each sheet to attach to four copies of the form. Label each sheet with the item number it continues.

Caption (A and B)

Court, case number and judge, court address, plaintiff and defendant

FOC 88, page 1, caption, as printed on the form — FOC 88, page 1, caption — tap to open the full page

What it asks: STATE OF MICHIGAN, the JUDICIAL CIRCUIT and COUNTY, CASE NO. and JUDGE, the court address and telephone number, and the plaintiff’s and defendant’s name, address, and telephone number, each with a moving party box.
What to put: Instruction A says to copy the case number from the Motion Regarding Custody (FOC 87). Instruction B says to copy the names from the motion and to check moving party in the box with the other party’s name, because the other party is the moving party. For example, if Maria Lopez filed the motion as plaintiff, check moving party in the plaintiff box and write your own name, Daniel Reyes, in the defendant box.
Common mistake: Checking moving party next to your own name. On the response, the moving party is the person who filed the motion.

Third party box

Third party’s name, address, and telephone no.

What it asks: The name, address and telephone number of a third party in the case, with a moving party box.
What to put: Copy it from the motion if the motion has one; instruction B says to use it if applicable. Check moving party here only if the third party filed the motion.
Common mistake: Leaving it blank when the motion lists a third party.

Item 1 (C)

Is there an order regarding custody?

FOC 88, page 1, item 1, as printed on the form — FOC 88, page 1, item 1 — tap to open the full page

What it asks: a. On [Date] a judgment or order was entered regarding custody, or b. There is currently no order regarding custody.
What to put: Instruction C says to check only one box: read your judgment or order and check a if it has any information about custody, with the date it was entered, or b if it has none. Check your own papers rather than copying the motion.
Common mistake: Copying the motion’s answer when it is wrong. If the motion says there is no custody order and there is one, item 1 is where that shows.

Item 2 (D)

Who was ordered to have custody

FOC 88, page 1, item 2, as printed on the form — FOC 88, page 1, item 2 — tap to open the full page

What it asks: A box, then: The plaintiff, defendant, or third party was ordered to have custody of the following child(ren), with a line for their names.
What to put: Instruction D says to check this box only if you checked box a in item 1, read your court papers to find out who was ordered to have custody, and write that here with the children’s names.
Common mistake: Writing who has the children now. That is item 3; item 2 is what the order says.

Item 3 (E)

Where the children are living now

FOC 88, page 1, item 3, as printed on the form — FOC 88, page 1, item 3 — tap to open the full page

What it asks: The child(ren) have been living with [Name(s)] at [Complete address] since [Date].
What to put: Instruction E says to state who the children are living with now, the address or location, and the date they started living there, even if it is different than what was ordered.
Common mistake: Leaving it blank because the motion already says it. If you disagree with the motion’s item 4, your item 3 is where your version goes.

Item 4 (F)

I agree / do not agree that circumstances have changed as stated in the motion

FOC 88, page 1, item 4, as printed on the form — FOC 88, page 1, item 4 — tap to open the full page

What it asks: Whether you agree that circumstances have changed as stated in the motion. The form says to explain in detail what you do not agree with and why, and to include all necessary facts.
What to put: Instruction F says to check agree or do not agree and, if you do not agree, explain in as much detail as possible what you do not agree with and why. Vodvarka is the measure: a change of circumstances must have happened after the last custody order, must be material, and must have or could have a significant effect on the child’s well-being. Point out facts that predate the last order, or changes that are ordinary.
Common mistake: Answering the best interest arguments here. Item 4 is only whether circumstances have changed as the motion says.

Item 5 (G)

I agree / do not agree that proper cause exists as stated in the motion

FOC 88, page 1, item 5, as printed on the form — FOC 88, page 1, item 5 — tap to open the full page

What it asks: Whether you agree that proper cause exists as stated in the motion. The line printed under it on the current form reads: If you do not agree with the motion, explain why it is in the best interests of the child(ren).
What to put: Instruction G says to check agree or do not agree and, if you do not agree, explain in as much detail as possible what you do not agree with and why; it says the judge or referee will review these causes using factors from the Child Custody Act to determine the best interests of the child. Under Vodvarka, proper cause must be relevant to at least one of the best interest factors in MCL 722.23 and of a magnitude to have a significant effect on the child’s well-being.
Common mistake: Checking “agree” on item 4 or item 5 by reflex. Agreeing that proper cause or a change exists concedes the threshold the motion has to cross.

Item 6 (H)

I agreed with the other party to custody, parenting time, and support

FOC 88, page 1, item 6, as printed on the form — FOC 88, page 1, item 6 — tap to open the full page

What it asks: A box, then whether you agreed a. exactly as stated in the motion, or b. but not as stated in the motion. If b is checked, the form says to explain in detail what you did agree on.
What to put: Instruction H says to check this box only if H is checked on the Motion Regarding Custody. On the current FOC 87, letter H is item 7, where the moving party describes an agreement, and that item has no check box. Then check a or b, and if b, describe what you actually agreed to.
Common mistake: Checking item 6 when the motion does not claim an agreement. Leave it blank in that case.

Item 7 (I)

What you ask the court to order

FOC 88, page 1, item 7, as printed on the form — FOC 88, page 1, item 7 — tap to open the full page

What it asks: a. I agree with what is being asked for in the motion, or b. I do not agree with what is being asked for in the motion and ask the court to order custody, parenting time, and support as follows. If b is checked, the form says to explain in detail why and what you want the court to order.
What to put: Instruction I says to check a if you agree with the request in the motion, or b if you do not, and then explain why and what you want the court to order. If you want a specific parenting time schedule, MCL 722.27a(8) says parenting time shall be granted in specific terms if requested by either party.
Common mistake: Checking b without saying what you want instead. The court then has only the motion’s proposal on paper.

Signature (J)

Date and responding party’s signature

FOC 88, page 1, signature, as printed on the form — FOC 88, page 1, signature — tap to open the full page

What it asks: The date and your signature.
What to put: Instruction J says to write in today’s date and sign, then take the original and five copies, with four copies of each separate sheet, to the county clerk.
Common mistake: Filing in a different county. The instructions say to file in the county where the motion was filed, which is printed in the upper left corner of the motion.

Certificate of mailing (K)

CERTIFICATE OF MAILING

What it asks: The statement that on this date you served a copy of the response on the parties or their attorneys by first-class mail addressed to the last-known address as defined in MCR 3.203, with the date and your signature.
What to put: Instruction K says to date and sign it on the remaining three copies on the day you mail, then return to the county clerk with two copies. MCR 3.203(A)(2) says service by mail is to a party’s last known mailing address, and MCR 2.107(C)(3) says service by mail is complete at the time of mailing.
Common mistake: Mailing on the fourth day before the hearing. MCR 2.119(C)(2)(a) requires at least 5 days for a response served by first-class mail.

Common pitfalls

Treating the response as optional, then not showing up

The note on FOC 87 says you may file a response; the instructions say you must attend the hearing on the motion, and that if you cannot complete every step on the checklist, your response may not be heard at the hearing.

Serving too late

MCR 2.119(C)(2) says a response must be served at least 5 days before the hearing if served by first-class mail, or at least 3 days before if served by delivery, and MCR 2.119(C)(4) says it must be filed at least 3 days before the hearing, unless the court sets a different time. The instructions say to serve by first-class mail at least 5 days before the hearing date.

Conceding the threshold

If you check “agree” on items 4 and 5, you tell the court you do not dispute the threshold the motion has to cross. Vodvarka holds that the court is not authorized to reconsider the best interest factors unless the moving party first establishes proper cause or a change of circumstances.

Arguing only the best interest factors

MCL 722.27(1)(c) says the court shall not change a child’s established custodial environment unless clear and convincing evidence shows it is in the child’s best interest, and MCR 3.210(C)(1) says the court may not enter an order resolving a contested matter that changes it without first holding an evidentiary hearing. If the children have an established custodial environment with you, say so and say why.

Forgetting the other custodian

The instructions say to mail a copy, with attachments, to any custodian or guardian other than the other parent who has care or custody of the children, as well as to the other party.

Missing the objection window after a referee hearing

The instructions say that if a referee hears the motion and you disagree, you may object and ask for a hearing before the judge using FOC 68. MCR 3.215(E)(4) says the written objection and notice of hearing must be filed within 21 days after the referee’s recommendation for an order is served.

What to file with FOC 88

FOC 87: Motion Regarding Custody. The motion you are responding to. Your items follow its items. Read the FOC 87 walkthrough.
MC 416: Uniform Child Custody Jurisdiction Enforcement Act Affidavit. FOC 88 and its instructions do not mention it. MCL 722.1209(1) puts the UCCJEA information on each party in its first pleading or an attached sworn statement, and MCL 722.1209(4) gives each party a continuing duty to tell the court about a proceeding in this or another state that could affect the case. Read the MC 416 walkthrough.
FOC 89: Order Regarding Custody and Parenting Time. Not prepared by you. The instructions say the other party prepares the order after the decision, even if it is not what the motion or your response asked for.
FOC 68: Objection to Referee’s Recommended Order. Named in the instructions for objecting to a referee’s decision and asking for a hearing before the judge.

Filing practice differs by county. The instructions describe paper filing with the county clerk; MCR 3.203(G) says that where electronic filing is implemented, the court and the friend of the court decide how filed documents reach the friend of the court. Ask the clerk how filing works in the county where the motion was filed.

Keep reading

FOC 87 Motion Regarding Custody, item by item

The motion this form answers, and what each of its items asks.

MC 416 UCCJEA Affidavit, item by item

The affidavit attached to the motion, listing where the child has lived for five years.

FOC 66 Response to Motion Regarding Parenting Time, item by item

If what you were served is a parenting time motion (FOC 65) instead.

Changing a custody or parenting time order in Michigan

The proper cause standard and the evidentiary hearing.

Custody and parenting time in Michigan

The twelve best interest factors and the established custodial environment.

The Friend of the Court in Michigan

What the office does with a custody motion, including investigations.

Common questions

Do I have to file a response to a Michigan custody motion?

The note printed on FOC 87 says the person receiving the motion may file a response, on FOC 88. The FOC 88 instructions say you must attend the hearing on the motion, and that if you do not complete every step on the response checklist, your response may not be heard at the hearing.

How many days before the hearing must I serve FOC 88?

MCR 2.119(C)(2) says at least 5 days before the hearing if served by first-class mail, or at least 3 days before if served by delivery, and MCR 2.119(C)(4) says the response must be filed at least 3 days before the hearing, unless the court sets a different time. The instructions say to serve it by first-class mail at least 5 days before the hearing date.

What does “proper cause” mean on FOC 88?

It is the threshold in MCL 722.27(1)(c). In Vodvarka v Grasmeyer, 259 Mich App 499 (2003), the Court of Appeals defined it as one or more appropriate grounds, relevant to at least one of the twelve best interest factors, that have or could have a significant effect on the child’s life. Item 5 asks whether you agree that it exists as stated in the motion.

Where do I file FOC 88?

The instructions say to take the original and five copies to the county clerk in the county where the motion was filed, which is shown in the upper left corner of the motion form. The clerk keeps the original and one copy for the court file and the friend of the court and returns four copies to you.

Who writes the order after the hearing?

The FOC 88 instructions say the other party, who filed the motion, prepares the order using the instructions for FOC 89, even if it is not what was asked for in the motion or in your response.

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