Objecting to a Referee's Recommendation in Michigan: How De Novo Review Works

The hearing felt like court. There was testimony, there were objections, someone kept a record. Then a document arrives that changes your parenting time or your support number — and the signature at the bottom belongs to a referee, not a judge. If that recommendation is wrong, you have 21 days to act.

A referee is not your judge

Michigan circuit courts may send most domestic relations motions to a Friend of the Court referee for an initial hearing. Under MCR 3.215(B), the chief judge can direct whole categories of motions to a referee by administrative order, and individual judges can refer others.

A referee has real authority. Under MCL 552.507(2), part of the Friend of the Court Act (1982 PA 294), a referee can hear domestic relations motions, administer oaths, compel witnesses and documents, examine witnesses and parties, and prepare written findings with a recommended order. One carve-out: MCL 552.507(2)(a) excludes "motions pertaining to an increase or decrease in spouse support." Those go to the judge.

What a referee produces is a recommendation, not a judgment. It becomes the court's order when the judge enters it.

Twenty-one days, measured from service

Under MCR 3.215(E)(1), the referee has 21 days after the hearing to make findings on the record or submit a written, signed report with a recommended order. Then your clock starts.

MCL 552.507(4) gives either party the right to a de novo hearing before the judge on written request, or the court may order one on its own motion. A party's request must be made within 21 days after the recommendation is made available to that party. MCR 3.215(E)(4) sets a 21-day period as well, running from service of the recommended order.

The difference matters if you have a lawyer: the court rule measures from service on the attorneys, or on the parties themselves if unrepresented. If your attorney was served before your copy reached your mailbox, the clock started with your attorney. Same length, different starting line.

If you do not object in time, you give up your right to a judicial hearing, and the recommendation will ordinarily be entered as the court's order. The referee is required to warn you: MCR 3.215(D) calls for oral notice during the hearing and written notice in the recommendation itself.

There is a statewide SCAO form: FOC 68, Objection to Referee's Recommended Order. It must be filed with the court, served on the other party, and noticed for hearing — FOC 68 calls for serving the other party at least nine days before the hearing date. An objection filed but never set for hearing does not get you in front of the judge.

"De Novo" means a new hearing — within limits

An appeal asks a higher court to find legal error below. A de novo hearing is different: the judge takes the question up and decides it.

In Cochrane v Brown, 234 Mich App 129; 592 NW2d 123 (1999), the Court of Appeals held that a de novo hearing is required where a party timely files written objections, and that deciding on the referee's record alone — without the consent the rule then required — was legal error.

The rule has since changed in both directions. The consent prerequisite for record-based review is gone. In its place, MCR 3.215(F)(2) requires the court to allow the parties to present live evidence at the judicial hearing, even where it conducts the hearing by reviewing the referee's record.

So "de novo" does not promise a full re-trial. MCL 552.507(5) permits reasonable restrictions and conditions, provided the parties had a full opportunity to present and preserve important evidence before the referee and get a chance, on the findings actually objected to, to offer that evidence plus evidence they could not have presented earlier. MCL 552.507(6) says such hearings "include, but are not limited to" a decision on the prior record, a decision on new evidence, or the record supplemented with additional evidence. MCR 3.215(F)(2) also lets the court bar evidence on findings nobody objected to.

Two consequences follow. The record you make before the referee may end up being the primary basis for the judge's decision, so a referee hearing is not a dress rehearsal. And your objection should name the specific findings you challenge and what you want to add.

Under MCR 3.215(F)(1), the judicial hearing must be held within 21 days after the written objection is filed, unless the court extends that time for good cause.

The recommendation can bind you while you wait

Objecting does not automatically freeze everything.

MCL 552.507(7) allows the recommended order to be presented to the court for entry as an interim order while a de novo request is pending; the interim order must be served on the parties within 3 days.

MCR 3.215(G) governs interim effect, and has two layers that are easy to run together:

• MCR 3.215(G)(2) bars interim effect outright for an order of incarceration, forfeiture of property, or costs, fines, or other sanctions.

• MCR 3.215(G)(3) additionally bars a court from giving interim effect by administrative order to a recommendation that changes a child's custody or domicile, or would render later judicial consideration moot.

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Read that second one carefully. It restricts blanket interim effect granted by a county's administrative order. It does not mean a custody or domicile recommendation can never take interim effect — a judge may still give one interim effect by an order entered in your specific case under MCR 3.215(G)(1).

So find out what order is actually in effect, and comply with it while your objection is pending. Do not assume objecting suspended it.

Write the objection so the judge can rule on it

An objection is a pleading, not a letter of complaint. MCR 3.215(E)(4) calls for a clear and concise statement of the specific findings or application of law objected to. FOC 68 asks for specific errors of law or clearly erroneous findings of fact. Where the record is inaccurate or incomplete, say where.

There is a cost to filing without grounds. MCR 3.215(F)(3) permits the court to assess reasonable costs and attorney fees where an objection is frivolous or filed to delay, and FOC 68 carries that warning on its face.

What this means for you

• Calendar from service, not from when you read it. If you are represented, service on your attorney starts the court rule's 21 days.

  
  

• File the objection and notice it for hearing. One without the other does not get you a judicial hearing.

  
  

• Treat the referee hearing as the hearing that counts. That record may be most of what the judge has.

  
  

• Confirm what is in effect today. Interim effect is the difference between a disputed number on paper and an obligation you are already under.

  
  

If the 21 days have run, the route forward generally runs through a new motion rather than an objection, and the showing is different — worth asking about rather than assuming the door has closed.

Talk to a lawyer about your situation

If you have a referee's recommendation in Kent County or elsewhere in Michigan and are deciding whether to object — or the 21 days are running — Scozzari Law, PLLC can review it with you and discuss your options. Call us at (616) 226-4343 or email at james.scozzari@scozzarilaw.com to schedule a consultation today!

This article is general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship with Scozzari Law, PLLC. Michigan law changes, and how it applies depends entirely on the facts of your case. If you have a family law or criminal matter in Kent County or elsewhere in Michigan, talk to a lawyer about your specific situation.