November 1, 2002



2001-06

Adoption of Rule 3.220 of 
the Michigan Court Rules
____________________________________


     On order of the Court, notice of the proposed changes and an opportunity for comment in
writing and at a public hearing having been provided, and consideration having been given to the
comments received, Rule 3.220 of the Michigan Court Rules is adopted, to be effective
January 1, 2003.


            [The new language is as indicated below.] 

Rule 3.220     Incarcerated Parties

(A)  This subrule applies to

     (1)  domestic relations actions involving minor children, and

     (2)  other actions involving the custody, guardianship, neglect, or foster-care
placement of minor children, or the termination of parental rights,

     in which a party is incarcerated under the jurisdiction of the Department of Corrections.

(B)  The party seeking an order regarding a minor child shall 
                                                                 
     (1)  contact the department to confirm the incarceration and the incarcerated party's
prison number and location; []

     (2)  serve the incarcerated person with the petition or motion seeking an order
regarding the minor child, and file proof with the court that the papers were served; and

     (3)  file with the court the petition or motion seeking an order regarding the minor
child, stating that a party is incarcerated and providing the party's prison number and location;
the caption of the petition or motion shall state that a telephonic hearing is required by this rule.
(C)  When all the requirements of subrule (B) have been accomplished to the court's
satisfaction, the court shall issue an order requesting the department, or the facility where the
party is located if it is not a department facility, to allow that party to participate with the court or
its designee by way of a noncollect and unmonitored telephone call in a hearing or conference,
including a friend of the court adjudicative hearing or meeting.  The order shall include the date
and time for the hearing, and the prisoner's name and prison identification number, and shall be
served by the court upon the parties and the warden or supervisor of the facility where the
incarcerated party resides.

(D)  All court documents or correspondence mailed to the incarcerated party concerning any
matter covered by this rule shall include the name and the prison number of the incarcerated
party on the envelope. 

(E)  The purpose of the telephone call described in this subrule is to determine

     (1)  whether the incarcerated party has received adequate notice of the proceedings
and has had an opportunity to respond and to participate,

     (2)  whether counsel is necessary in matters allowing for the appointment of counsel
to assure that the incarcerated party's access to the court is protected,

     (3)  whether the incarcerated party is capable of self-representation, if that is the
party's choice, 

     (4)  how the incarcerated party can communicate with the court or the friend of the
court during the pendency of the action, and whether the party needs special assistance for such
communication, including participation in additional telephone calls, and

     (5)  the scheduling and nature of future proceedings, to the extent practicable, and the
manner in which the incarcerated party may participate. 

(F)  A court may not grant the relief requested by the moving party concerning the minor child
if the incarcerated party has not been offered the opportunity to participate in the proceedings, as
described in this rule.  This provision shall not apply if the incarcerated party actually does
participate in a telephone call. 

(G)  The court may impose sanctions if it finds that an attempt was made to keep information
about the case from an incarcerated party in order to deny that party access to the courts.

       Staff Comment:  The November 1, 2002, enactment of MCR 3.220,  effective
January 1, 2003, is based on a proposal made in conjunction with the settlement agreement in the
Court of Claims of that portion of Cain v Dep't of Corrections, 88-61119-AZ, 93-15000-CM,
and 96-16341-CM, that pertains to women prisoners.

The staff comment is published only for the benefit of the bench and bar and is not an
authoritative construction by the Court.