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FAMILY LAW 74: An established custodial environment may exist in more than one home.

The parties have one child together, CFM. Plaintiff initiated this action on by filing a complaint for custody, in which he requested joint physical custody of CFM. Shortly thereafter, plaintiff filed an emergency motion for parenting time; the court granted this motion.

Defendant answered plaintiff’s complaint and filed a counterclaim for custody, parenting time, and child support, in which she requested that she be awarded sole physical custody of CFM.

The trial court conducted a bench trial regarding plaintiff’s complaint for custody. Plaintiff and defendant were the only individuals who testified at the trial.

Established Custodial Environment

The court analyzed the parties’ testimony at trial and specifically considered all relevant periods of CFM’s life, including periods when the parties were not living together.

Before making a custody determination, the trial court must determine whether the child has an established custodial environment with one or both parents. A child’s established custodial environment is the environment in which over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. An established custodial environment is one of significant duration, both physical and psychological, in which the relationship between the custodian and child is marked by security, stability, and permanence.

Child Resides with One Parent

Defendant argues that an established custodial environment was created solely with her during the period between November 30, 2019, and February 19, 2020, during which time CFM resided only with defendant. Specifically, the trial court noted that the parties separated on November 29, 2019. The trial court explicitly noted that, after the parties separated, plaintiff cared for CFM several days a week; exercised overnight visits with CFM; demonstrated comfort providing for CFM’s needs for CFM until March 2020. The trial court noted that, after March 2020, plaintiff scaled back dramatically on his parenting time as a precaution against exposing CFM to COVID.

An established custodial environment may exist in more than one home and can be established as a result of a temporary custody order, in violation of a custody order, or in the absence of a custody order.

Joint Physical Custody

The trial court concluded that an established custodial environment existed with both parties. The court thus awarded the parties joint physical custody of CFM.

Child Custody & Support

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. 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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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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FAMILY LAW 77: Court awarded plaintiff sole legal custody; defendant was unwilling to work with plaintiff.

For joint custody to work, parents must be able to agree with each other on basic issues in child rearing including health care, religion, education, day to day decision making and discipline and they must be willing to cooperate with each other in joint decision making. If two equally capable parents are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.

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