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FAMILY LAW 40: Trial court found that the children’s unexcused absences justified a reevaluation of the last custody order.

Plaintiff filed for divorce in 2013, beginning an acrimonious and litigious history between the parties.

Originally, the parties reached an agreement regarding custody and parenting time, resulting in a consent judgment of divorce. Defendant and plaintiff were to share legal custody, while the children would primarily reside with defendant. Plaintiff received parenting time on alternating weekends and Tuesdays.

On several occasions after the judgment of divorce was entered, defendant unilaterally decided to withhold parenting time from plaintiff, citing allegations of abuse, none of which were substantiated. After a significant amount of litigation, the parties agreed to a modified parenting-time order in November 2017 that granted plaintiff an additional weekend of parenting time monthly.

The events that led to the instant appeal began in February 2018, when defendant again decided that she would stop plaintiff from exercising his parenting time. This time, defendant asserted that the children had been exposed to a dangerous situation when they were left with plaintiff’s girlfriend at the time. Specifically, defendant discovered that the children had been present in plaintiff’s girlfriend’s vehicle when she was assaulted by a family member. Defendant acted unilaterally, only later filing an emergency motion with the trial court to suspend plaintiff’s parenting time until he agreed that the children would not be left in the care of plaintiff’s girlfriend.

In response, plaintiff requested that the trial court deny defendant’s motion and, further, to consider modifying the custody order and awarding him primary physical custody.  Plaintiff relied on defendant’s repeated violation of court orders and the fact that the minor children had already missed a significant number of unexcused absences that school year. At a March 2013 evidentiary hearing regarding the motion, the trial court agreed with plaintiff, found proper cause and change of circumstances to review the prior custody order and set an evidentiary hearing regarding custody.

The evidentiary hearing on plaintiff’s motion for sole custody spanned nearly three months and included six days of testimony. During that time, the court entered an ex parte temporary order limiting defendant’s parenting time to weekends after defendant had sent plaintiff vindictive text messages stating that she was planning to withhold the oldest child from a summer program. The court also granted defendant’s request that plaintiff not leave the children in plaintiff’s girlfriend’s care.

Later, after defendant sent plaintiff text messages strongly indicating that she would not comply with the order limiting her parenting time, the trial court entered a second ex parte temporary order suspending defendant’s parenting time, which was later modified to grant defendant supervised parenting time.

In October 2018, the trial court issued a written opinion and order finding that the children had custodial environments with both parents and that by clear and convincing evidence the best interests of the minor children favored modifying the custody arrangement to provide plaintiff with sole legal and primary physical 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, visitation or child support you deserve. 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 Aldrich Legal Services

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