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FAMILY LAW 18: Parents with joint legal custody cannot agree on school child will attend, the trial court decides.

Plaintiff and defendant share joint legal custody of their child, and plaintiff has primary physical custody, under a consent order entered in 2016.  The parties were not able to agree on where the child would attend preschool, although both agreed generally that the child should attend preschool.  At the hearing, defendant maintained that the joint legal custody arrangement had been violated by plaintiff’s refusal to discuss the child’s preschool placement. The trial court ordered that the parties continue to try to resolve the issue on their own, and that if they were not able to do so, the trial court would then decide the issue. The trial court did not hold an evidentiary hearing or analyze how the parties’ proposals for preschool affected the best interests of the child.

The parties were not able to resolve the preschool issue. The trial court issued an order on October 31, 2017 that outlined a first, second, and third choice of preschools for the child’s placement. The order also stated that the child was to attend full days of preschool.  The trial court denied plaintiff’s motion for reconsideration of its order.

With regard to the trial court’s order concerning preschool placement, plaintiff argues that the trial court erred by issuing the order without conducting an evidentiary hearing, making findings of fact, or analyzing the best-interest factors.

The Child Custody Act, MCL 722.21, applies to all child custody disputes in the circuit court, whether original or incidental to other actions.  When parents with joint legal custody cannot agree on an important decision, such as where the child will attend school, the trial court must resolve the issue in the best interests of the child.

In this case, the parties shared joint legal custody. Both parties agreed that the child should attend preschool. However, the parties did not agree on where the child should attend preschool. Therefore, it fell to the trial court to resolve the issue.

In so doing, the trial court was required to resolve the issue in the child’s best interests, using the best-interest factors identified in MCL 722.23.  However, the trial court’s order regarding preschool placement merely stated, the parties were unable to agree on preschool placement and as a result, the parties are to do the following. The trial court did not hold a hearing to analyze the best-interest factors.

Therefore, the appeals court vacated the trial court’s October 30, 2017 order regarding preschool placement and remand to the trial court for further proceedings.

If you are going through a divorce or you are not able to agree on child issues, it is important to seek the advice and guidance of an experienced family law and divorce attorney. Aldrich Legal Services assists parents with all types of child support and custody matters, including, relocation, petitioning for or contesting modifications, enforcing child support orders and negotiating child support agreements.

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REAL ESTATE 18: If contract is silent as to time of performance, the law will presume a reasonable time.

The absence of an explicitly stated time for performance or payment does not render a contract invalid or unenforceable. One party’s substantial breach of a contract may relieve the other party of its obligation to perform under the contract. Substantial breach may be found in cases where the breach has effected such a change in essential operative elements of the contract that further performance by the other party is thereby rendered ineffective or impossible.

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REAL ESTATE 17: To sustain a breach of contract, plaintiff must show that the other party breached the contract, not that it will breach the contract.

Plaintiff failed to properly allege a cause of action for breach of contract, plaintiff’s claim for injunctive relief necessarily fails. An injunction is an equitable remedy rather than an independent cause of action. It is not the remedy that supports the cause of action, but rather the cause of action that supports a remedy. Thus, without a cause of action, injunctive relief is not warranted, and the trial court did not abuse its discretion in denying plaintiff further injunctive relief.

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