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FAMILY LAW 73: The judgment of divorce included two alternative parenting-time provisions.

The parties married in 2013 while in Florida. Plaintiff was originally from Michigan, and defendant was originally from New Jersey. The child, JV, was born in 2014. The parties separated approximately one year later. The Florida courts granted the parties’ divorce in 2015.

Two Alternative Parenting-Time Provisions

The judgment of divorce provided that both parties shall share in making major decisions for the minor child. Major decisions were to include decisions involving childcare providers, schools, medical providers, and nonemergency medical treatment. The judgment of divorce also included two alternative parenting-time provisions. The first parenting-time provision would operate if the parties lived within 20 miles of each other, in which case each parent would receive two overnights a week and alternating weekends with JV. Alternatively, if the parties did not live within 20 miles of each other, defendant would generally receive two weekends a month with JV. The judgment also divided holidays. The judgment provided that plaintiff could relocate JV to Michigan, and it expressed the belief that defendant would also relocate to Michigan.

Plaintiff promptly moved to Michigan with JV to live with her family. The parties continued to engage in mutually antagonistic communications. At some point, defendant purportedly acquired a residence in Michigan. But defendant actually continued to physically reside in Florida, at least in part, and it is not clear whether his Michigan residence ever even existed.

Sole Legal Custody

In May 2020, plaintiff moved for sole legal custody. In response to a motion for make-up parenting time filed by defendant, plaintiff contended that she was entitled to make-up parenting time, premised mostly on the allegation that defendant fraudulently claimed he resided in Michigan during 2018 and 2019. Plaintiff asserted that the parties’ communication difficulties about school, extracurricular activities, and the child’s medical care established that they could not communicate or agree about major life decisions affecting the child.

Friend of the Court

In June 2020, following a hearing, a Friend of the Court referee issued a report and proposed order. The referee determined that proper cause did not warrant revisiting the child’s custody because, although plaintiff had established that the parties had a history of communication issues, there was no evidence that their disagreements affected the child’s well-being. The referee opined that their problems could be resolved by a stable parenting schedule. The referee noted that the existing parenting-time order lacked clarity, and it proposed to modify parenting time to provide more structure. At the hearing, the parties agreed to a parenting schedule, and the trial court ordered the parties to communicate through Our Family Wizard except in cases of emergency.

Assistance With Custody

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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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