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

The parties were not married when the minor child was born in September 2017. Plaintiff filed a paternity complaint and subsequently signed an affidavit of parentage. Plaintiff also filed a motion requesting joint legal and physical custody in addition to parenting time. The parties signed a temporary consent order that gave defendant physical custody of the child and awarded plaintiff a parenting-time schedule.

At a pretrial hearing, the parties stipulated to joint legal custody, and the trial court concluded that only parenting time was at issue.

At the evidentiary hearing, plaintiff sought an increased parenting-time schedule, describing his ideal parenting-time schedule as all day, three days per week, and one overnight. Plaintiff’s proposed schedule depended on his ability to bring the child to the daycare facility where he worked. Plaintiff maintained that he would be able to watch his own child while also caring for the other children at the daycare facility. The owner of the daycare facility confirmed plaintiff’s testimony about this arrangement. The trial court was skeptical that plaintiff would be able to care for the other children while watching his own child and refused to grant plaintiff the parenting-time schedule he requested. Instead, after hearing testimony about both parties’ work schedules and childcare arrangements, in addition to testimony about plaintiff’s parenting skills and the parties’ co-parenting abilities, the trial court determined that plaintiff should have parenting time for four hours on three weekday evenings and for a six-hour block of time on Sunday afternoons.

The final order governing custody and parenting time also granted the parties joint legal custody and defendant primary physical custody.

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.

The appeals court agreed that the trial court failed to articulate its findings about the child’s established custodial environment and the child’s best interests related to physical custody and parenting time but disagreed that the trial court was required to make separate best-interest findings about which daycare the child attended.

A trial court is required to determine whether there is an established custodial environment with one or both parents before making any custody determination. Similarly, the trial court is required to make a finding about the child’s established custodial environment before ordering parenting time. This determination is mandatory because the burden of proof with respect to the child’s best interests depends on whether an established custodial environment exists.

Here, the trial court committed clear legal error in failing to address whether there was an established custodial environment.

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.

Our family law attorneys at Aldrich Legal Services have helped countless family law clients across southeast Michigan, including in Wayne, Washtenaw and Oakland counties. Contact us at our law firm and we can help protect your custodial rights.

Contact Aldrich Legal Services

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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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.

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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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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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