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A trial court erred when it permitted grand-parenting time despite the grandparents not having met the burden required

Concluding that the trial court did not comply with the procedures and requirements set forth in MCL 722.27b, which constituted clear legal error, the court vacated the order for grandparenting time and remanded for the dismissal of the plaintiffs-grandparents' complaint. It was undisputed that plaintiffs had standing to pursue a request for grandparenting time. However, pursuant to MCL 722.27b(4)(b), they had to prove by a preponderance of the evidence that the defendant-mother's decision to deny grandparenting time created a substantial risk of harm to the child's mental, physical, or emotional health. The statute provides that if the grandparent does not overcome the presumption, the trial court "shall dismiss the complaint or deny the motion." The trial court "expressly stated on the record that 'I don't think statutorily [plaintiffs] have met [their] burden. I don't make a finding where I would impose grandparent visitation . . . .'" It later reiterated, "I don't think [plaintiffs] have met that burden for me to impose [visitation]." Plaintiffs did not challenge this finding on appeal, and the court noted that, even if this finding was challenged, it was "not convinced that the evidence clearly preponderates in the opposite direction." Despite its finding, "the trial court 'granted' plaintiffs' motion," contrary to the statute's express language. "Upon finding that plaintiffs failed to overcome the presumption articulated in MCL 722.27b(4)(b), the court was required to dismiss the complaint or deny the motion." Plaintiffs argued on appeal that the trial court erred in granting grandparenting time at defendant's discretion. This argument presupposed that the trial court properly entered an order for grandparenting time. However, "the trial court committed a clear legal error by misapplying the existing law." 

DIVORCE 45: Federal law preempts state law such that the parties’ consent judgment is unenforceable to the extent that it required defendant to reimburse plaintiff for the reduction in the amount payable to her due to his election to receive CRSC

BACKGROUND This case involves a dispute between former spouses who entered into a consent judgment of divorce (the consent judgment), which provided that defendant would pay plaintiff 50% of his military retirement benefits. Beyond that, the...

How to Choose a Criminal Defense Lawyer for a DUI

No one wants to be arrested, and if you are, especially for the first time, you can be very confused. Being arrested for Drunk Driving, Driving Under the Influence (DUI) or Operating While Intoxicated (OWI) - formerly Driving While Intoxicated (DWI)...

What does Client and Attorney Privilege Mean?

How much should you tell your lawyer? The fifth amendment protects U.S. citizens from incriminating themselves, but how does that work with your attorney. We get this question all the time. Many people have heard about attorney confidentiality,...

FAMILY LAW 50: A Michigan Court has jurisdiction to make an initial custody determination when it is the home state of the child on the date of the commencement of the proceeding or within 6 months before the commencement of the proceeding.

PROCEDURAL HISTORY  Plaintiff and defendant have twin sons, but never married.  On August 13, 2008, the Court of Common Pleas Juvenile Division in Montgomery County, Ohio established plaintiff as the legal father of the children and...

When You Should Contest a Will?

Wills usually go through without a problem. Well over 90% of wills have no issue making it through probate. However, there are several grounds you may have to contest a will. As a beneficiary, or someone who would gain from a will, there are legal...

What You Need to Know About Distracted Driving

A great U.S. freedom is the ability to drive the open roads. However, every year there are more than 20,000 car accidents in Michigan. Many of these accidents come from distracted driving and could have been avoided. Distracted driving is such a...

Reasons Your Will or Trust Could be Contested

Everyone reacts in their own way when a family member passes away. Emotions can run high, and people can react more strongly than they normally would. Some family members may feel cheated by what a will or trust grants them leading them to contest...

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