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FAMILY LAW 31: Custody decisions require all best interest factors, but parenting time decisions only contested issues.

Following their divorce in 2013, the parties were awarded joint legal and physical custody of their minor children, with defendant having primary parenting time. In 2017, defendant and her new husband moved from Pinckney to Morrice and enrolled the children in the Morrice School District without consulting plaintiff or obtaining his consent.

The parties thereafter filed competing motions to determine which school district the children should attend, and plaintiff also sought sole custody of the children due to defendant’s refusal to cooperate with arrangements for plaintiff’s makeup parenting time, as well as alleged conduct by defendant to alienate the children against plaintiff.

On November 30, 2017, the trial court found that the children should remain in the Pinckney School District. The trial court issued a temporary order giving plaintiff primary parenting time with the children until defendant moved back to the Pinckney area, which she indicated that she planned to do. However, after defendant decided not to sell her Morrice home, the trial court held a custody hearing to determine whether its prior custody order should be changed.

Following the hearing, the trial court awarded plaintiff sole legal custody of the children, and modified the parenting time arrangement so that primary parenting time would be with plaintiff, with defendant receiving parenting time on Wednesday evenings, alternating weekends, and shared holidays and summer vacations.

Defendant now challenges the trial court’s decisions to award plaintiff sole legal custody of the children, and to modify the parenting time arrangement.

Evidence that one parent has been the primary caregiver does not preclude a finding that an established custodial environment exists with the other parent. This Court has clearly recognized that an established custodial environment can exist with both parents in their respective households.

The trial court found that defendant had engaged in misconduct that was designed to alienate the children from plaintiff.

With respect to the trial court’s November 2017 parenting time decision, defendant maintains that the trial court did not consider either the best interest factors under MCL 722.23 or the factors in MCL 722.27a(7).

Custody decisions require findings under all the best interest factors, but parenting time decisions may be made with findings on only the contested issues. Moreover, defendant’s argument that the trial court erred by temporarily changing the parenting time schedule is undercut by the fact that she had indicated to the trial court at the hearing that she planned to move back to Pinckney before the start of the second school semester, and the trial court’s indication that, if defendant did so, it would revisit its decision.

In this case, the evidence clearly supports the trial court’s finding that the parties, and defendant, were unable to effectively communicate or agree on the needs and best interests of their children. Defendant moved herself and the children to Morrice and enrolled the children in Morrice schools without informing plaintiff or seeking his consent. The trial court’s finding that joint custody was not feasible is not against the great weight of the evidence.

If the divorce or separation process does not turn out like you thought it would, you may not have the custody, visitation or child support you deserve. Seek the advice and guidance of an experienced family law and divorce attorney who will be by your side every step of the way.

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REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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FAMILY LAW 32: Trial court committed error in failing to address whether there was an established custodial environment.

On appeal, plaintiff argues that the trial court failed to make any findings regarding (1) the child’s established custodial environment, (2) the child’s best interests regarding the grant of primary physical custody to defendant, (3) the child’s best interests with respect to parenting time, and (4) the child’s best interests pertaining to the parties’ dispute over daycare.

PROBATE 25: Daughter removed as personal representative of the estate.

the probate court determined that Daughter J had managed the estate in a manner that promoted her own interests as a beneficiary over the interests of the estate. The probate court found that such management demonstrated mismanagement of the estate and that removal of Daughter J was therefore in the best interests of the estate.

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REAL ESTATE 32: Plaintiffs and defendants executed a second easement.

Plaintiffs requested that the trial court, either through reformation of the First Easement or interpretation of the Second Easement, quiet title in favor of plaintiffs and declare them to be the owners of an easement to access Lake Superior through the ravine on defendants’ property, enjoin defendants from interfering with their use of the easement, and order compensation for damages to the stairs.

LITIGATION 4: Plaintiff claimed installation of hardwood flooring breached the condo bylaws.

Defendants completed the project. Plaintiff did not pay for any of the costs of the project. Defendants moved to compel plaintiff to pay one-half of the costs under the agreement. Plaintiff responded that defendants had materially breached the agreement in several ways, including by denying her the right to supervise the project, by refusing to give her an installation schedule, and by starting work before plaintiff approved of the start date.

FAMILY LAW 30: Discretionary trust assets cannot be reached to satisfy claims for child support and alimony.

The key difference between discretionary trusts, support trusts, and spendthrift trusts is that creditors cannot compel the trustee of a discretionary trust to pay any part of the income or principal in order that the creditors may be paid. The opposite is true of spendthrift and support trusts, which allow trust assets to be reached to satisfy creditors, including creditors seeking to satisfy claims for child support and alimony.

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FAMILY LAW 29: Quitclaim deed signed after prenuptial agreement prevails.

The court ruled that title to the land prevails and that once the deed was signed, the property became the undivided whole interest for both the decedent and appellee and became appellee’s property upon the decedent’s death. Consequently, the court concluded that the prenuptial agreement did not have any impact on the property rights of appellee in this case.

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