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DIVORCE 75: The trial court agreed that the long morning commute on school days satisfied the threshold burden for reconsidering custody.

At the time of the parties’ divorce, they agreed to joint legal and physical custody of their two children

Guardian Ad Litem (GAL) Report

In January 2021, the children’s guardian ad litem (GAL) issued a report and recommendation advising the trial court that defendant had uncovered a plan by plaintiff to move with the children from Rochester to New Baltimore where her fiancé lived which would result in a commute of approximately one hour each way between plaintiff’s new residence and the children’s schools in Rochester.

Change of Circumstances

Plaintiff relocated with the children to her fiancé’s home in mid-March 2021. During May 2021, she moved to transfer the children from Rochester schools to Anchor Bay schools in New Baltimore and to alter the parenting-time schedule in whatever manner necessary to implement that change. Defendant responded by moving to change custody and parenting time, arguing that plaintiff’s unilateral decision to move the children an hour away constituted proper cause and a substantial change of circumstances.

The trial court agreed that the long morning commute on school days satisfied the threshold burden for reconsidering custody.

Evidentiary Hearing

Following an evidentiary hearing, the court opined that an established custodial environment existed with both parents, such that clear and convincing evidence had to be presented in support of a custody modification.

Concerning the statutory best-interest factors, MCL 722.23, the trial court found that factors (a) (love, affection, and emotional ties), (g) (mental and physical health), and (k) (domestic violence), equally credited both parents; while factor (j) (willingness and ability to facilitate child’s relationship with other parent) did not favor either parent. The court interviewed each child separately in camera and took their statements into consideration under factor (i) (child’s reasonable preference), but did not consider any other unenumerated considerations under factor (l) (any other factor). The remaining best-interest factors favored defendant.

The court cited evidence regarding plaintiff’s timeline of disclosing the move and possible school change, which involved revealing information to the children well before defendant.

Court Decision

The court expressed concern regarding plaintiff’s failure to appreciate how her actions left the children in a position of having to keep secrets from defendant, caused them uncertainty about their future schooling, and made them feel guilty for telling defendant the truth. The court opined that plaintiff’s decision making concerning the move gave almost no consideration to the children.

The court determined that the children had more stability and permanence as a family unit with defendant in Rochester. The court granted plaintiff parenting time three weekends of each month, as well as non-overnight parenting time on Wednesday afternoons. The court granted defendant the balance of the parenting time during the school year. During summer break, the court ruled that parenting time be exercised on alternating weeks. The court did not alter the parties’ previous holiday schedule.

Assistance With Post-Decree Modifications

It is important to remember that decrees regarding child support, child custody, and visitation are not always final. Circumstances change all the time, which is why it is possible to seek a post-decree modification.

Our family law attorneys at Aldrich Legal Services have helped countless family law clients across southeast Michigan, including in Wayne, Washtenaw and Oakland counties, receive modifications that more fairly meet their needs. Contact us at our law firm in Plymouth. We can help you determine your chances of receiving a modification.

Contact Aldrich Legal Services

Speak to a Pro: (734) 404-3000

FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

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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