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FAMILY LAW 81: The fact that a child has grown old enough to attend school is not a change in circumstance.

In this case, the parties share joint legal custody of SG, and plaintiff is SG’s primary physical custodian. Plaintiff resided in Gwinn County while defendant resided in Ishpeming. Under the custody order governing at the time of the relevant proceedings, defendant had parenting time every other weekend.

Motion for Change of Custody

Defendant filed a motion for change of custody in which he alleged that plaintiff was not properly caring for SG, that plaintiff was allowing others to care for SG, and that SG, who was about to attain school age, and should attend school in Ishpeming. Plaintiff filed a motion in which she requested that the court determine where SG would attend school and argued that she should attend Gwinn schools which are near plaintiff’s home.

 A referee recommended that plaintiff’s motion be granted, and that defendant’s motion be denied. Following a de novo hearing, the court affirmed the referee’s decision.

Proper Cause or Change of Circumstance

In a child custody dispute, a custody order may only be modified for proper cause shown or because of change of circumstances. Defendant argues that the trial court erred by denying his motion for change of custody without conducting an evidentiary hearing concerning whether he could establish proper cause or a change of circumstances.

Although the threshold consideration of whether there was proper cause or a change of circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary hearing on the topic. In this case, to the extent there were factual disputes, the court accepted defendant’s allegations as true and determined that they were not legally sufficient to satisfy the standard.

No Evidentiary Hearing Required

Specifically, the court concluded that defendant’s allegations that plaintiff was not properly grooming SG and that she was having unexplained diaper rashes, if true, did not rise to the level of proper cause or change of circumstances. Defendant also argued that SG’s attainment of school age was a change of circumstances; however, the fact that a child has grown old enough to attend school is a normal life change.

Assistance With Custody

It is important to remember that decrees regarding child custody are not always final. Circumstances change all the time, which is why it is possible to seek a post-decree modification.

Our family law attorneys at Aldrich Legal Services have helped countless family law clients across southeast Michigan, including in Wayne, Washtenaw and Oakland counties, receive modifications that more fairly meet their needs. Contact us at our law firm in Plymouth. We can help you determine your chances of receiving a modification.

Contact Aldrich Legal Services

Speak to a Pro: (734) 404-3000

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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