Big changes to Ex Parte motion practice

Starting September 1, 2025, filing an ex parte motion is about to become more complex. Motions filed ex parte, which is Latin for “by or for one party,” are based on one party’s belief that the matter is so urgent and important, that the other side should not be afforded notice. MCR 3.207 states that the court needs to be satisfied by the facts in the motion that “irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.”

Ex parte motions have to be verified or have an affidavit attached regarding the truth of the statements contained therein. Beyond that, not a lot is required procedurally to file the motion, as the seriousness of the facts really dictate the outcome. That is all about to change this September, as the ex parte court rule is getting a major overhaul.

 

If the case has minor children involved, ex parte motions will have to set forth whether child has an established custodial environment (ECE), and if so, with who. Per MCL 722.27, the custodial environment “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 motion also has to state whether or not entry of the requested order will change the ECE, or clear and convincing evidence exists that changing the ECE is in the child’s best interest. If a third party is requesting the ex parte order, he or she must also show the change is in the best interest of the child, by clear and convincing evidence.

 

Additionally, the court cannot enter an order that could modify the ECE without having an evidentiary hearing within 21 days after the ex parte order is entered. The order must include the notice of the hearing also, and the order has to be served on the Friend of the Court and opposing party within three days of its issuance. Ex parte orders must include specific language that provides parties with information as to what needs to be done if they want to object to the order, and when it may become a temporary order. The revised court rule also makes multiple changes to mandatory order language, as well as what must be done after service of the order. Be sure to check those out as this article addresses the modifications impacting how to file and what the court must do to enter an ex parte order.

 

And as a side note… ex parte is pronounced eks-PAR-tay, not ex party. Because nobody wants to party with their ex.

If you want to be heard, you must serve

Court motion dockets are held daily, usually grouped by subject matter, giving litigants the opportunity to have their issues heard. Due to my background, my largest involvement surrounds the domestic or family law docket. When the court is hearing the motions, I hold what I call my “disappointment docket,” where I have the unfortunate job of telling individuals that their motion likely won’t be heard that day due to failing to serve the opposing party or attorney.

While service times can vary, I’m focusing on Michigan Court Rule (MCR) 2.119. Pursuant to that rule, service of the written motion, notice of hearing and any briefs, etc. must be served upon the opposing side at least 9 days before the hearing if you are mailing it first-class, or at least 7 days before the hearing if you serve the other side personally. Personal service is exactly what it sounds like – physically delivering the documents, but also includes electronic service pursuant to MCR 1.109. Parties can also agree to allow service by email.

The key is to ensure you file a proof of service or certificate of mailing with the court, indicating how and when you served the other side. Without that, we don’t have any clue if and when service occurred and the motion can’t be heard if service was not properly effectuated. Many SCAO motion forms have a section for the movant to sign and date that the pleadings were served; however, many people fail to fill this out. It’s also common to have a proof of service for the motion but not the notice of hearing, and both are required.

No proof of service, or service not filed under the timelines required, win you a spot on my disappointment docket where I will inform you of the deficiency. At times, the other side appears and was actually served despite no proof of service being filed. If everyone appears for the hearing, there is the option to go forward with the motion that day and waive the service issue. Other cases result in adjournments, giving the movant time to get it right.

To have a seamless transition from filing your motion to having it heard in the courtroom, ensure that you follow the court rules to avoid the disappointment of possibly ending up on my docket.

AI usage in the legal field

Artificial Intelligence (AI) has infiltrated almost every nook and cranny in modern life. Most people have used AI to find out the weather, send a text or add something to their virtual cart. A simple “hey Siri,” or “Alexa,” fires up your virtual assistant, who can even tell you a good joke if you need a laugh. AI is increasingly used in the legal field as well.

In March 2025, a New York appeals court allowed plaintiff Jerome Dewald to provide his argument via video. When the video started to play, judges were shocked to have the argument presented by an avatar created by Dewald. The judge shut down the video but allowed him to continue to argue his case.

Dewald apologized to the court and explained that he thought the virtual character would do a better job presenting his position – after all, the avatar isn’t going to be nervous or intimidated by the legal process. In my opinion, I don’t think licensed attorneys should be allowed to substitute AI for themselves in court, but self-represented individuals are often afforded more leniency. Arguments for an artificial advocate could be made, especially if the litigant has a disability or learning disorder. The litigant should still be present to answer any questions or be cross-examined, and there’s always the risk that technology could glitch (think about how many times we’ve told people they are frozen when Zooming).

Interestingly, Arizona’s Supreme Court created AI Reporters Daniel and Victoria to deliver information about every ruling. Videos online have the pleasant and well-spoken avatars explaining the reasoning – the court wants to ensure timely access to accurate court decisions and have them presented in an understandable way. It only takes 30 minutes to generate the AI videos, which are written by court employees, significantly shortening the amount of time to “get the news out.”

AI certainly has its downfall – lawyers have been fined for using it to create legal arguments that turned out to be supported by non-existent law, or “AI hallucinations.” Short cuts are not always the best route and fact checking should be a must for anyone using AI in court. After all, you shouldn’t believe everything you read on the internet.

Spill lands Starbucks in hot water

For those of us old enough, we remember the infamous McDonald’s hot coffee lawsuit brought by Stella Liebeck in the 90s. Stella suffered third-degree burns on 16% of her body when the scorching liquid spilled on her legs and groin area, ultimately resulting in a jury trial when the two couldn’t reach an initial settlement. The judge reduced punitive damages from $2.7 million to $480,000, and the $200,000 compensatory damages were slashed to $160,000. Stella and McDonald’s eventually reached a private settlement.

Stella’s lawsuit became big news and was considered by many to be a frivolous money grab despite her serious injuries and treatment. Like a blast from the past, a jury just told Starbucks to cough up $50 million after Postmates driver Michael Garcia received third-degree burns to his groin and thighs while picking up hot tea in 2020. Michael had multiple skin grafts and claimed he suffers from pain with friction to the burned area.

For all you lookie-loos out there, you can watch the video of the incident from a camera directed at the Los Angeles’ Starbucks’ drive through window and see the extreme reaction after Michael is handed the drinks and the cup falls. The crux of Michael’s argument was that the employee neglected to secure the tea in the drink carrier.

As one would expect, Starbucks is appealing the massive jury award, stating that while it has sympathy for Michael, the beverage giant is not to blame. I’d be surprised if they don’t reach a settlement to avoid the continuous legal battle and potential bad press. However, companies should be reminded that in instances like these, it’s not just the customer who lands in hot water.

New year, new child support formula manual

New year, new you, new child support formula manual. Unlike your new year’s resolutions, the 2025 Michigan Child Support Formula (MCSF) manual must be adhered to for the next four years until another version is ushered in.

Nothing earth shattering has been changed in the 2025 version, although several things are worth mentioning. The annual ordinary medical amount that the payee of support must pay first before unreimbursed health care costs for the children are divided between the parties has actually been reduced. Prior formulas only increased the minimum amount the payee had to spend before the percentage split kicked in. However, the 2025 MCSF lowered the amount from $454 per year per child to $200 per year per child.  The new manual emphasizes that the payer of support pre-pays his or her percentage as part of the monthly support amount – while this is not new, clarification is helpful.  Uninsured health care costs for the children incurred by both the recipient and payer of support are subject to division.

 

Day care costs also have a new expiration date. The prior formula provided that child care costs could be included until August 31^st following the child’s 12^th birthday. Now, child care continues until the last day of the month that the child is under the age of 13. Of course, a court can extend the child care expiration date should it be necessary to do so for that specific case and child.

 

If a parent is incurring costs associated with his or her incarceration or conviction, those recurring payments can be deducted when calculating child support. This does not apply if the crime was failure to support children, or committed against the children in the case (or their sibling), the other parent or custodian.

 

Along with a new formula comes updated SCAO forms – be sure to use the most recent Uniform Child Support Orders and Deviation Addendum when submitting your support orders to the court. The Friend of the Court approval process should catch if an old form has been used, but it’s always easier to have it right the first time.

 

Sticking with the 2025 MCSF manual is easy because you don’t have a choice – good luck with the rest of your resolutions.

Following MCR is a must for motions

The four most important words when you file a motion are “follow the court rules.” The Michigan Court Rules (MCR) are the bible for dos and don’ts when petitioning the court for relief. Individual counties may have their own additional local rules so it’s important to peruse those also.

The risk of not paying attention to the MCR can lead to disastrous results in court – if you even make it that far. Service rules for filing a motion, notice of hearing and proof of service are of utmost importance and determine whether your motion can even be heard before the judge that day. The opposing party or his attorney must receive copies of your pleadings within a certain amount of time before the actual hearing. In addition, you must file a proof of service saying when and how you gave notice of the hearing and motion. It’s not enough to simply tell the court you did it – you must “prove” it by filing the proof of service/certificate of mailing in the court file.

 

At times, parties will accuse the other of lying on the proof of service, saying the documents were never actually sent, which may or may not be true. The USPS is blamed on the daily, to the extent you’d start to believe carrier pigeons would be more reliable.

 

The advent of electronic filing, called MiFile in Michigan, has helped alleviate some service questions as emails can be added to the system, ensuring the documents are routed directly to that person. MiFile also allows documents to be filed anytime of day, making the process more accessible than coming to the courthouse during business hours, and is considered personal service, requiring less advance notice than mailing. If available, attorneys must use MiFile, but self-represented parties can choose to file pleadings the old-fashioned way. Depending on the type of case, MiFile may not be available. One caution about MiFile – it can take 24+ hours for the document to reach its intended destination due to employees having to review and route the documents to the correct file and location, so courtesy emails are appreciated.

 

Rules governing service can be overwhelming and confusing. However, if they aren’t followed, you risk having your hearing canceled and not heard before the court until service is properly effectuated. During our dockets, I talk to the parties who have failed to provide proper service and explain that they won’t have an audience with the judge that day. Often both parties attend the hearing because they were notified but the moving party didn’t know he needed to file a piece of paper saying the other side was served. If both parties attend and agree to move forward, any defects in service can be waived; however, if a party demands proper service, the motion must be rescheduled.

 

Don’t forget to file a proof of service for the new date of hearing – if you don’t, you will end up in a “Groundhog Day” situation. If your concerns are important enough to bring to the judge’s attention, make sure you follow through on what’s required of you to have your day in court.

The Bare Minimum

Everyone has heard the expression “the bare minimum,” but did you know it can be applied to child support as well? The Michigan Child Support Formula (MCSF) is updated every four years, with 2025 being the kickoff to a new manual. Changes will be discussed in later articles, but I’d like to mention this often-overlooked section.

 If you are opted into the Friend of the Court (FOC) system, you are eligible for a child support review every 36 months or sooner if circumstances change. While this list is not exhaustive, examples of changes are the birth of another child, job loss or gain, raises, incapacitation and incarceration. If you are one of the lucky ones where nothing has caused you to adjust support in three years, the FOC should contact you to inquire if you want a review; depending on the answers, one will be started.

 

The volume of support review requests received by the FOC and courts is large, and the outcomes may not be what the parties were hoping for. People often think that every raise and every overnight have a big impact on what is being paid in support. However, depending on what the change is, and how it fits into the support algorithm, it may not make a dent in the formula recommended amount.

 

2025 MCSF Section 4.05 covers the minimum threshold for modification of child support. Those “bare minimums” are 10% of the currently ordered support amount, or $50 per month, whichever is greater. So, if you’re paying $450 per month in support, and the new recommended amount is $460, the bare minimum has not been met and support will stay the same. But if support is recommended to be $125, you’ve hit the jackpot, and the threshold has been met.

 

You can agree to modify support under the threshold amount and enter a new order, but it’s very unlikely the court would grant a modification that doesn’t meet the threshold without the parties’ agreement. If the FOC child support review exceeds the minimum threshold, the FOC must request a modification of the current order.

 

If your FOC review results in a letter telling you that the recommended amount did not meet the minimum threshold, now you know what that means. You can object to the review even if the threshold amount is not met, just like you could if a modification was recommended.

 

Before you ask for a support review, use the MiChildSupport Calculator, which can be accessed online at: https://micase.state.mi.us/calculatorapp/public/welcome/load.html, to get an idea as to whether your $2 raise or health care premium increase will move the needle. Doing the bare minimum can have a lasting effect on your resources and frustration.