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DIVORCE 70: Plaintiff filed an ex parte motion for temporary custody of the marital home and children.

The parties married in 2007 and have two minor children. There were numerous confrontations when defendant would allegedly become physical and violent. There was also an argument between the parties in August 2020, at which time defendant cut his hand on a glass candle he broke. In September 2020, plaintiff discovered a second affair between defendant and a woman he is now dating.

Separation

In early October 2020, defendant left the marital home. At the time, the parties agreed that defendant would still get the children for three afternoons per week and every other weekend. Though defendant provided substantial assistance in caring for the children during the parties’ marriage, this changed once he left the marital home. Plaintiff solely handled the children’s morning and evening routines, took them to all doctor’s visits, and attended school conferences, though defendant still attended the children’s dentist appointments and select after-school activities, and regularly spoke with them over the phone.

Ex Parte Motion

Plaintiff filed for divorce on October 15, 2020. With respect to custody of the children, plaintiff alleged that it was in the children’s best interests for the trial court to grant her physical custody and grant joint legal custody with defendant. Defendant filed an answer, countering that it was in the children’s best interests for the parties to share joint legal and joint physical custody. During the divorce proceedings, plaintiff filed an ex parte motion for temporary custody of the marital home and children, which the trial court granted.

Referee Report

A hearing before a referee was conducted, after which the referee entered a report and recommendation concluding that clear and convincing evidence supported plaintiff having primary physical custody of the children. Following the de novo hearing before the trial court, the trial court rendered an opinion regarding its judgment of divorce.

Trial Court

The trial court determined that the children had an established custodial relationship with plaintiff. And after evaluating each best interest factor, the trial court concluded that defendant failed to demonstrate that modification of the ex parte order to equal physical custodial time was warranted. Therefore, the trial court awarded the parties joint legal custody, with plaintiff having primary physical custody and defendant having parenting time per the order.

Assistance With Custody

If you are going through a divorce or are separating from the mother or father of your children, it is important to protect your custodial rights. If the divorce or separation process does not turn out like you thought it would, you may not have the custody you deserve.

Contact Aldrich Legal Services

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REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

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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