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PROBATE 33: Petitioners filed for co-guardianship of each grandchild.

This case arises out of petitioners’ long-term housing and care for three minor children of their son, the respondent in this matter. The parties agree that in 2007, respondent telephoned petitioner-grandmother from California and asked her to come to California to pick up the children and take them with her back to Michigan so that he and his wife, the children’s mother, who had been hospitalized for suicidal thoughts, could address marital and mental health issues. Petitioner-grandmother complied.

The children lived with petitioners for the next eleven years, from 2007 until respondent moved them out on July 27, 2018 at 7:00 p.m. The parties also agree that respondent never provided petitioners with a power of attorney or other legal document granting petitioners the legal authority to make decisions about the children’s care and maintenance.

Respondent lived with petitioners from June 2007 until February 2012, and again from late November 2017 until June 2018. In May 2018, respondent began to search for a house to buy and move into with his fiancé. He purchased a house on June 29, 2018 and moved in the next day. Respondent allowed the children to continue to live with petitioners while he settled into the new home, bought furniture, and prepared for the children to live with him. His planned move-in date for the children was August 1, 2018. In the weeks preceding the planned move-in date, respondent, sometimes aided by petitioner-grandmother, moved some of the children’s belongings into the new house, and they spent several overnights with him.

On July 27, 2018, petitioners filed petitions for appointment of a guardian for each of the children, requesting that petitioners be appointed as co-guardians. Respondent took the children hours later and they have lived with him since that date.

Respondent objected to the petitions.

Pursuant to MCL 700.5204(2)(b), in order for a court to consider appointing a guardian, a petitioner must first establish that 1) the parent permits the minor child to reside with another person; 2) the parent does not provide the other person with legal authority for the minor’s care and maintenance; and 3) the minor is not residing with his or her parent when the petition is filed.

The record evidence indicates that they were not yet residing with respondent. Instead, the record shows that the children resided continuously with petitioners from January 2007 until July 27, 2018, hours after petitioners had filed their petition for guardianship. During this period, petitioners housed the children, cared for them, and made all the child rearing decisions, even after respondent began to exercise some overnight visits at his place starting in May 2018. Regardless of respondent’s intention to have the children reside with him in the future, or his characterization of the months after May 9, 2018 as a “transitional period,” when the petitions were filed, the children were still residing with, and in the care of, petitioners.

In this case, all parties agree that the children had moved into petitioners’ home as of 2007 and were continuing to live there, as allowed by respondent, for over 11 years as of the filing of the petitions.

The trial court can now gauge the children’s best interests and make the discretionary decision as to whether a guardianship appointment for any of the children is appropriate.

To schedule a consultation with an experienced probate lawyer at our firm, contact our law office in Plymouth, Michigan. Probate litigation is complex and requires the attention of experienced and knowledgeable counsel.

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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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