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

The parties had joint physical and legal custody of their minor child. Plaintiff moved to change both legal and physical custody. Following an evidentiary hearing, the trial court awarded plaintiff sole legal custody while leaving the joint physical custody arrangement in place.

Legal and Physical Custody

The parties’ minor child was born in December 2014. Plaintiff and defendant were never married and their relationship ended. The parties have engaged in extensive litigation in the trial and appellate courts, arguing over virtually every conceivable facet associated with child custody and support. After multiple motions and rulings on a variety of issues, plaintiff moved for sole legal and physical custody in September 2020.

Established Proper Cause for Change

The trial court concluded that while plaintiff failed to meet the burden of establishing proper cause or a change of circumstances for the purpose of modifying physical custody, he satisfied that burden with respect to the issue of legal custody. The record demonstrates that the parties’ disagreements have escalated and expanded to topics that could have a significant effect on the child’s well-being. Since the date of the last custody order, the parties have continued to disagree about the child’s medical treatment.

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.

Best Interest Factors

The court found that plaintiff was favored in regard to factors (b), (g), (h), and (l) and that the remaining factors were either inapplicable or favored neither party—they were equal. The trial court determined that there was clear and convincing evidence that awarding plaintiff sole legal custody was in the child’s best interests. The court concluded that defendant was unwilling to work with plaintiff without a third party being involved and that defendant preferred that the court decide matters.

There was evidence supporting the trial court’s findings that there had been an escalation of disagreements and conflicts and an increase in the lack of cooperation, which were largely being driven by defendant.

The trial court expressed concerns about defendant’s mental and physical well-being, her conduct in withholding from plaintiff the Chromebook used for the child’s schooling, defendant’s lack of sharing of information relative to scheduled Zoom classes, and her failure to use the child’s full last name on his records.

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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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