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FAMILY LAW 86: Change in custody and parenting time because defendant repeatedly disobeyed court orders.

Defendant and plaintiff had one child together, DHW, before their marriage was annulled in 2017. Although the parties were originally granted joint legal and physical custody in the consent judgment of annulment, the trial court granted plaintiff sole legal and physical custody of DHW in April 2019 after a lengthy evidentiary hearing. Defendant was granted supervised parenting time three days per week.

The change in custody and parenting time was primarily brought about by evidence that defendant repeatedly disobeyed court orders and parenting-time rules, prioritized his personal vendettas over DHW’s precarious mental health, and continuously made unsupported allegations that plaintiff and her family were abusive.

Three-Phase Parenting Time Schedule

In February 2020, the parties agreed to entry of a stipulated order establishing a three-phase schedule for defendant to return to unsupervised parenting time. In the first phase, defendant would have three supervised parenting-time visits each week. In the second phase, defendant would continue the same general parenting-time schedule, but only every other visit would be supervised. The third phase involved parenting time without any supervision.

The order provided that defendant would automatically transition to each successive phase after a period of time unless the parties’ arbitrator determined that a problem required delay of the automatic progression. The phases did not progress as contemplated by the stipulated order because plaintiff raised concerns with the arbitrator, thereby triggering the delay provision.

Defendant’s Motion

Defendant’s August 2021 motion seeking a change of custody, modification of parenting time, and other relief. Defendant complained that 18 months after entry of the stipulated order regarding the parenting-time phases, he was back at square one with supervised parenting time and he was under the microscope while plaintiff’s dangerous and harmful behavior went unchecked and unmonitored. Defendant made several complaints about plaintiff’s parenting decisions.

The trial court heard oral arguments, but ultimately denied defendant’s motion without an evidentiary hearing, reasoning that defendant failed to establish the threshold burden of proper cause or a change of circumstances to reconsider custody.

Change of Circumstance

When seeking to modify a custody or a parenting-time order, the moving party must first establish proper cause or a change of circumstances before the court may proceed to an analysis of whether the requested modification is in the child’s best interests. The threshold showing of proper cause or a change of circumstances must be established by a preponderance of the evidence. If the moving party advances a change-of-circumstances theory, he or she must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.

The trial court identified several reasons for denying defendant’s motion, the most significant of which was that defendant’s allegations mirrored those at issue at the time the last custody order was entered and were, therefore, insufficient to establish defendant’s threshold burden.

Assistance With Custody

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.

Contact Aldrich Legal Services

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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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