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Recent Decision Brings Significant Consequences for Step-Parent Adoptions

Jul 10 | 2013  by

In an astounding opinion issued on April 18, 2013, Michigan’s Court of Appeals held that the trial court improperly granted a step-parent adoption under the adoption code, MCL 710.51(6), where the father with joint legal custody objected to termination of his parental rights, In the Matter of AJR, Docket No. 312100, [For Publication]. The Court of Appeals’ (“COA”) statutory interpretation of one word from MCL 710.51(6) made all the difference.

The COA held that since the child’s biological father was granted joint legal custody in the parties’ prior Judgment of Divorce, his parental rights could not be terminated pursuant to MCL 710.51(6) to facilitate a step-parent adoption without his consent.

Respondent’s Father’s trial attorney did not raise this objection in the trial court.  However, rather than refusing to consider the unpreserved issue for appeal, the COA said this:

… this Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented. Here, the issue presented is strictly an issue of law–statutory interpretation–and all of the requisite facts have been presented. Thus, in the interests of justice, we will review the issue. [Slip page 2, citations omitted]

The facts of the case were ripe for a step-parent adoption. Respondent’s biological father and mother were married and had one child. They divorced. The mother was granted sole physical custody of the child, with both parents sharing joint legal custody. Father was ordered to pay child support and was granted him reasonable visitation with the child.

Years later, the mother married the petitioner’s stepfather. Approximately two years after their marriage, the mother and stepfather filed a petition for a stepparent adoption and requested that the court terminate the parental rights of the respondent father to allow the stepfather to adopt. They properly alleged that the respondent failed to provide regular and substantial child support and failed to maintain regular and substantial contact with the child during the two years prior to filing the petition.

Respondent’s Father objected to the termination of his parental rights. After a two-day trial, the trial court concluded that Respondent Father’s parental rights were lawfully terminated pursuant to MCL 710.51(6) because (1) respondent substantially failed to provide support for the child for the two years preceding the filing of the petition, and (2) respondent substantially failed to visit or communicate with the child during this two-year period. The trial court entered an order of adoption. On appeal, the Michigan Court of Appeals reversed, holding that MCL 710.51(6) does not apply to a parent who shares joint legal custody of a child.

Step-parent adoptions have been granted liberally under MCL 710.51(6) since the enactment of the Adoption Code in 1974 on the requisite grounds that the respondent parent has failed, for a period of two years immediately preceding the filing of the petition, to maintain regular and substantial contact with the child and has also failed to maintain regular and substantial child support for the child.

Certainly, the objective of the Adoption Code is to achieve permanency, stability, and security for children.  This Court of Appeals decision effectively prevents the stepparent adoption of any child whose absent parent holds a piece of paper stating that they have joint legal custody even if they have essentially abandoned the child.

The decision in In re AJR begs for a remedial legislative amendment to the Adoption Code. Any parent who substantially fails to provide support for his or her child for the two years preceding the filing of a step-parent adoption petition and who substantially fails to visit or communicate with his or her child during this two-year period should fall within MCL 710.51(6), and a Court should be empowered to terminate parental rights and grant a step-parent adoption.

If you have questions about adoptions or family law, please contact Fausone Bohn, LLP at (248) 380-0000 or online.