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FAMILY LAW 68: A fit parent’s decision to deny grandparenting time.

Plaintiff and defendant had two children out of wedlock. After plaintiff and defendant separated, they shared legal and physical custody of the children and had alternating parenting time. KT is plaintiff’s mother.

For a short period in 2013 and 2014, plaintiff and the children resided with KT during his parenting time. In 2014, plaintiff’s substance abuse, mental health issues, incidents of domestic violence, and other criminalities led to his parenting time being reduced and supervised and in July 2018 he stopped exercising parenting time because of his incarceration. Thereafter, defendant and KT had a disagreement regarding visitation for the children, and as a result, KT moved for grandparenting time.

Grandparenting Time

The right to grandparenting time arises by statute, MCL 722.27b. As relevant to this case, MCL 722.27b(1)(d) allows a grandparent to seek a grandparenting-time order when the child’s parents have never been married, they are not residing in the same household, and paternity has been established. The Legislature, however, established a presumption regarding a fit parent’s decision to deny grandparenting time.

In order to give deference to the decisions of fit parents, it is presumed that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health.

Substantial Risk to Child

To rebut the presumption created in this subdivision, a grandparent filing a complaint or motion under this section must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. If the grandparent does not overcome the presumption, the court shall dismiss the complaint or deny the motion.

In the present case, the trial court never questioned defendant’s fitness as a parent, and nothing in the record suggests that defendant was anything but a fit parent. KT herself recognized that defendant was a good mom who worked hard to provide for the children. Therefore, it is presumed that defendant’s decision not to allow the children to visit KT does not create a substantial risk of harm to the children’s mental, physical, or emotional health.

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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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