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A trial court committed error by considering the issue of grandparent visitation without being requested to do so

Holding that the issue of grandparent visitation was not properly before the trial court, and agreeing with the plaintiff-mother that when taken as a whole, on this record, the factors "strongly predominate against" any grant of visitation, the court vacated the trial court's order granting grandparent visitation. The custody order was otherwise affirmed. The case was a custody dispute involving plaintiff, the defendant-father, and the paternal grandmother (Intervener), where plaintiff was awarded sole physical and legal custody of the child, but the order included extensive grandparenting time with Intervener. The Intervener had provided the child with an ECE for a number of years before the custody hearing. In "granting plaintiff full physical and legal custody, the trial court methodically considered the child's best interests in MCL 722.23 and concluded that Intervener failed to meet her burden of showing by clear and convincing evidence that the child's best interests would have been served by placing the child in Intervener's care. Necessarily included in that decision was the trial court's tacit finding that plaintiff was a 'fit' parent. Whereas a custody case involves an inquiry as to parental fitness, a proceeding under the grandparent visitation statute presumes parental fitness." While the trial court carefully considered the best interest factors under the grandparent visitation statute, separately from its previous best interests determination on custody, "it nevertheless committed error by even considering the issue of grandparent visitation. Importantly, plaintiff received custody of the child just moments before the trial court's decision on grandparenting time" and thus, had not "denied" Intervener grandparenting time. The trial court, "in rendering an opinion on grandparent visitation absent a request to do so, effectively jumped the gun and presumed that plaintiff would unreasonably deny Intervener grandparenting time. But plaintiff testified that she was amenable to visitation as long as Intervener did nothing to sabotage plaintiff's relationship with the child." Additionally "of critical importance was the fact that the custody proceeding was not conducted in such a way as to elicit whether the child would suffer mental, physical, or emotional harm if grandparent visitation was denied." The court noted that contrary "to the trial court's approach, a request for grandparenting time is not automatically included in a third-party request for custody." 

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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PROBATE 51: Trust filed a petition to determine title to credit union account.

The probate court explained that the owners of the account are S and J. When S passes, J becomes the owner of the account. J is the one who had the authority to make the designation. Nowhere in any documents is there a designation by J that SJ be the owner -- or the beneficiary of the account. The designation made by his father was no longer binding because he was no longer the owner at the time J passed away.

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FAMILY LAW 77: Court awarded plaintiff sole legal custody; defendant was unwilling to work with plaintiff.

For joint custody to work, parents must be able to agree with each other on basic issues in child rearing including health care, religion, education, day to day decision making and discipline and they must be willing to cooperate with each other in joint decision making. If two equally capable parents are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.

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