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Michigan Court of Appeals Holds Parental Rights Cannot Be Terminated In Stepparent Adoption Without Custody Order

On March 14th, 2019, the Court of Appeals released their decision in AGD Minor, __ Mich App __; __ NW2d __ (2019)(Docket No. 345717) holding that the Genesee County Circuit Court did not error in dismissing a stepparent adoption action where the petitioner mother did not have a court order establishing her custody prior to terminating the respondent's parental rights.

Petitioner Mother and Respondent Father had a child in 2015. The parents were unmarried and Respondent established his paternity by affidavit of parentage. The parents then separated and the Respondent admittedly has not seen his child in three years. The Petitioner married another man during that time and Respondent battled with a heroin addiction that took him in and out of rehab. However, Respondent resurfaced in 2018 and filed a circuit court action seeking to reestablish contact with the child and enter a child support order. In response, Petitioner and her husband filed an action seeking to terminate the Respondent's parental rights and carry out a stepparent adoption.

Despite the representation by the Petitioner that she had custody of the child per court order, the trial court could not find evidence that such a custody order existed. The judge relied on the language of Public Act 143 of 2016 which read as follows:

MCL 710.51(6) - "If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father who meets the conditions in section 39(2) of this chapter, and if a parent having custody of the child according to a court order subsequently marries and that parent's spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:"

  • "(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition. A child support order stating that support is $0.00 or that support is reserved shall be treated in the same manner as if no support order has been entered."
  • "(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition."

The trial court relied on the language of "a parent having custody of the child according to a court order" in determining it was premature to terminate Respondent's parental rights. The stepparent adoption petition was dismissed, and the judge declared that the Petitioner Mother had to first get a court order regarding custody and parenting time.

Petitioner then appealed this decision to the Michigan Court of Appeals and argued that the statute regarding stepparent adoption was ambiguous. Specifically, Petitioner believes that ambiguity is in the first sentence of MCL 710.51(6) because it is unclear whether all parents must have custody "according to a court order" or whether this applies only to the first clause of the sentence and is limited to divorced parents. The Court of Appeals disagreed that any grammar was unclear and held that the custody according to court order requirement applied to all petitioners. Therefore, the trial court rightfully denied the stepparent adoption statute.

The language in MCL 710.51(6) can be a surprise for mothers who assumed that they had custody of their children due to the absence of fathers they were never married to. MCL 722.1006 states "[a]fter a mother and father sign an acknowledgment of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court." This means that the mother is endowed with sole legal and physical custody of the child from the onset. Physical custody means that the child has a right to live with that parent. Legal custody means that the parent has the right to make and/or participate in medical, educational and religious decisions for the child. Since the mother presumptively has full decision-making power of the child, why should she go through the onus of getting a custody order for the benefit of the deadbeat dad?

Regardless of the morality in the situation, the stepparent adoption statute is clear in its requirements and can only be modified by acts of the Michigan Legislature, not a court of law. Parents and stepparents should certainly consult with an experienced family law attorney to ensure they are eligible to carry out a termination petition before making an investment in wasted money and time. No matter how horrendous the behavior of the noncustodial parent has been, the circuit court judge may only grant relief if the basic statutory requirements are met.

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