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FAMILY LAW 75: Change in agreed upon parenting schedule results in change in physical custody.

J and T divorced in April 2017. The judgment of divorce provided that the parties would share joint legal and joint physical custody over their children. Primarily, the children would reside with J, who was living in Missouri at the time. The judgment specifically provided that they would go to school in the area where J resided. During the majority of the summer, the children would reside with T, who was planning to live in Michigan.

Change in Agreed Upon Parenting Schedule

In August 2017, J contacted T and asked that she flip the agreed upon schedule so that he would have them in the summer and she would have them in the school year. T agreed and drafted a written agreement to that effect. In late August 2018, T filed a petition to modify child custody. She sought to have the child custody order modified to reflect that the children would remain in her custody during the school year and spend four weeks and alternating holidays with J.

However, before a hearing on the petition could be held in the trial court, J took the children out of school in Michigan during a school day without T’s knowledge. He and the children flew to California. The children remained in his custody and were enrolled in a school in California until the trial court ordered J to return the children to T’s custody in December 2018.

Evidentiary Hearing

At the evidentiary hearing regarding the petition for modification of the child custody order, the trial court found that the majority of the best-interest factors favored T. The evidence established that the children have permanence and stability in Michigan with a loving family that provides for them. The children are also able to maintain their relationship with J through parenting time. Accordingly, the trial court entered an order awarding T sole physical custody of the children. The trial court granted T sole physical custody, both parents’ joint legal custody, and ordered that J will have parenting time every summer, one weekend a month, and on extended holiday weekends.

Established Custodial Environment

The trial court found that the parties mutually agreed to place the children in school in Michigan upon J’s move to California. That decision changed the children’s lives. The trial found that evidence established that, at the time of the new custody hearings, Michigan had been the children’s primary residence since 2017, they were starting their fourth year of school in Michigan, they were comfortable and well-adjusted to their home in Michigan, and they had an established routine, activities, and friends in Michigan. None of these changes were contemplated by the initial custody order.

Help with Child Custody

At Aldrich Legal Services, our attorneys and staff understand the stress that can come with family law disputes. We understand how important your relationship with your children is, which is why we will work hard to protect your rights and help you achieve a positive outcome.

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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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