Monday, June 30, 2014

Stepparent Adoption Just Became More Difficult in Michigan

On June 25, the Michigan Supreme Court handed down an opinion in the case of "In re AJR," where a minor child's new stepfather wanted to adopt the child and terminate the parental rights of the biological father.  In this case, according to the stepfather's petition,  the father had "ailed to provide support or comply with a support order and 
failed to visit or contact the adoptee for a period of 2 years or more," which is required by MCL 710.51(6)(a) and (b) in order for a stepparent adoption to go through.  Following a two-day evidentiary hearing, the lower granted the stepparent adoption and terminated the biological father's  parental rights pursuant to MCL 710.51(6).  The biological father appealed, and the Court of Appeals reversed the adoption, after looking at the statute, which refers to "the parent having legal custody of the child," which implies that the statute only applies to situations where one parent has legal custody and the other parent does not.  In the case "In re AJR," the parents had joint legal custody of the child under their 2009 divorce judgment.  

The Supreme Court of Michigan, in its June 25 opinion, affirmed the Court of Appeals' decision.  The Court stated  that "petitioners must follow the statutory procedures to obtain sole legal custody before seeking termination of the respondent-parent's parental rights under MCL 710.51(6)."  "Michigan has long recognized that the concepts of legal custody and physical custody are distinct and allocable between parents." The Court also discussed the distinction between legal custody and physical custody under Michigan law, noting that even if a parent has sole physical custody, they do not necessarily have sole legal custody, especially if an Order of Judgment states that the parents have joint legal custody.  This distinction was present even before the enactment of MCL 710.51(6). According to Michigan case law, "physical custody and legal custody were distinct concepts, allocable between parents, well before 1980." 

In this case, since the divorce judgment clearly awarded joint legal custody to respondent and the mother, she was not "the parent having legal custody" and thus, MCL 710.51(6) did not apply here. The court noted that petitioners were free to seek modification of the custody arrangement under MCL 722.27, meaning that's what the petitioners have to do in order to successfully get a stepparent adoption.  What this means for future stepparent adoption cases is that if the other parent has joint legal custody, the custody order needs to be changed to state that the custodial parent has full legal custody in order for the stepparent adoption to be started.  I guess this is good news for attorneys who charge by the hour, but not good news for people who are in a situation similar to the one of the mother and stepfather in this case, where the biological father had been basically absentee and the child looked to the stepfather as his father.

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