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One Court of Justice Blog

Apr 2017
12
April 12, 2017

A statute of limitations defense belongs only to the party raising it and cannot be resolved before that party is added to an action

A court may not preemptively decide whether a statute of limitations defense is available to a necessary party before he or she has been made a party to the litigation, held the Michigan Supreme Court in Graham v. Foster, No. 152058.  Additionally, the Court also held that a person timely made a party to an action may not claim on his or her own behalf that the action is time-barred on the basis of the plaintiff’s failure to add a necessary party before the limitations period expired.
 

Mar 2017
16
March 16, 2017

COA: In order to have physical child custody, parent must live in country signed onto child abduction treaty

Michigan courts may not grant physical custody to a parent who lives in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, said the Michigan Court of Appeals in Elahham v. Al-Jabban, Nos. 326775 and 331438. Based on a plain-language reading of the Child Custody Act and an interpretation of the phrase “parenting time,” the Court affirmed the trial court’s refusal to award physical custody of the parties’ minor child to the plaintiff mother, Lamis Elahham (Elahham).
 

Mar 2017
14
March 14, 2017

COA holds that proposed parenting-time change alters the established custodial environment.

In John Allen Lieberman v Kimberly Ann Orr, No. 333816, the Court of Appeals held the trial court erred in this child custody matter by granting plaintiffs motion for a change in physical custody. The Court held the trial court should have applied the legal standards set forth in Vodvarka to determine whether “proper cause” or a “change of circumstances” was sufficient to reopen the custody issue.

Feb 2017
02
February 02, 2017

COA: Prenups cannot deprive court’s ability to divide property in a divorce

Parties cannot waive, in an antenuptial agreement, the statutory authority of a court to invade a party’s separate estate when ordering a property division in a divorce, said the Michigan Court of Appeals on remand in Allard v. Allard, No. 308194. Provisions of Michigan’s divorce statute, according to the court, clearly demonstrate that the Legislature intends circuit courts to have discretion to allocate separate assets if doing so is necessary to achieve equity. Any agreement that attempts to bind that equitable authority of the court is necessarily void as against both statute and public policy.

Jan 2017
30
January 30, 2017

COA rules trial court must make initial child custody finding before referring to friend of the court for investigation

In Bowling v. McCarrick, No. 331583, the Court of Appeals held the trial court erred when it referred a child-custody matter to the Friend of the Court for conciliation before it had made a determination regarding whether the party requesting a change in custody had met his burden of proving either proper cause or change of circumstances.  The trial court improperly relied upon the Friend of the Court’s report in determining whether there was proper cause.  Because Michigan statute requires the court to make this determination before ordering the Friend of the Court to investigate, the Court of Appeals vacated the trial court order and remanded to the trial court for further proceedings. 
 

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