When someone marries the biological parent of a child, he or she does not suddenly gain or share the parental rights that the biological parent has in that child. Divorce may terminate a marriage, but it does not extinguish the parental rights of the persons involved in that child’s life. The parents retain full physical and legal custody between them. Stepparents may gain access to influence the minor children and assist the biological parent in their duties, but they do not gain any kind of rights or responsibilities simply due to the marriage. For all intents and purposes, stepparents are “legal strangers” to the biological parent’s children.
However, there are situations where stepparents can gain parental rights and responsibilities under the law under the appropriate circumstances:
TEMPORARY DELEGATION OF PARENTAL AUTHORITY (MCL 700.5501)
Michigan law permits a parent or guardian of a minor child to create a power of attorney that temporarily delegates parental authority to another person. The following rules apply to these types of power of attorney:
- Must Be Properly Executed: This document must either signed in the presence of 2 witnesses who also sign the durable power of attorney (neither of whom is the attorney-in-fact) OR acknowledged by the principal and signed before a notary public, OR BOTH. MCL 700.5501(2).
- Limitations To Grant Of Authority: A parent of guardian may delegate any or all of his or her powers regarding care, custody, or property of the minor child or ward. However, the parent or guardian cannot delegate the power to consent to marriage or adoption of a minor ward of to release of a minor ward for adoption. MCL 700.5103(1).
- Time Limitations: “A parent shall not knowingly and intentionally delegate his or her powers under this section regarding care and custody of the parent’s minor child for longer than 180 days…” MCL 700.5103(2). However, “[i]f a parent or guardian is serving in the armed forces of the United States and is deployed to a foreign nation, and if the power of attorney so provides, a delegation under this section is effective until the thirty-first day after the end of the deployment.” MCL 700.5103(3).
Parental authority can be temporarily delegated to a stepparent without court involvement for no longer than six months can be renewed. However, a parent attempting to use a power of attorney to transfer the legal or physical custody of a child with the intent to permanently divest a parent of parental responsibility, except by order of a court of competent jurisdiction, is guilty of a felony in the State of Michigan punishable by a fine up to $100,000.00 or up to 20 years in prison, or both. MCL 750.136c(3)(a). A person who assists, aids, abets or conspires with a parent to commit this act, including the person receiving the transfer of parental authority, is also guilty of a felony in the State of Michigan punishable by a fine up to $100,000.00 or up to 20 years in prison, or both. MCL 750.136c(3)(c). As a long term solution, the parent or stepparent would have to pursue legal action in the appropriate court.
FULL GUARDIANSHIP (MCL 700.5204)
A person interested in the welfare of a minor, or a minor if 14 years of age or older, may petition for the appointment of a guardian for the minor in the county where the minor resides or is present at the time of filing. The probate court may appointed a guardian for an unmarried minor if ANY of the following circumstances exist:
- The parental rights of both parents or the surviving parent are terminated or suspended by prior court order, by judgment of divorce or separate maintenance, by death, by judicial determination of mental incompetency, by disappearance, or by confinement in a place of detention.
- The parent or parents permit the minor to reside with another person and do not provide the other person with legal authority for the minor’s care and maintenance, and the minor is not residing with his or her parent or parents when the petition is filed.
- The minor’s biological parents have never been married to one another AND the minor’s parent who has custody of the minor dies or is missing and the other parent has not been granted legal custody under court order AND the person whom the petition asks to be appointed guardian is related to the minor within the fifth degree by marriage, blood, or adoption.
The court may order the family independence agency or a court employee or agent to conduct an investigation of the proposed guardianship and file a written report of the investigation. In addition, for the minor’s welfare, the court may at any time order the minor ward’s parents to pay reasonable support and order reasonable parenting time and contact of the minor ward with his or her parents.
Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the legal requirements for a full guardianship are satisfied, and the minor’s welfare will be served by the requested appointment, then the court shall make the appointment. Otherwise, the court may dismiss the proceeding or make another disposition of the matter that will serve the minor’s welfare.
LIMITED GUARDIANSHIP (MCL 700.5205)
An interested party may file for a limited guardianship in the country where the minor resides or is present at the time of filing. The probate court may appoint a limited guardian for an unmarried minor upon the petition of the minor’s parent or parents if ALL of the following requirements are met:
- The parents with custody of the minor consent or, in the case of only 1 parent having custody of the minor, the sole parent consents to the appointment of a limited guardian.
- The parent or parents voluntarily consent to the suspension of their parental rights.
- The court approves a limited guardianship placement plan agreed to by both of the following parties:
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- The parents with custody of the minor or, in the case of only 1 parent having custody of the minor, the sole parent who has custody of the minor.
- The person or persons whom the court will appoint as the minor’s limited guardian.
A limited guardianship REQUIRES the consent of the parents for placement in a limited guardian and participation in a limited guardianship placement plan. This placement plan must include the reasons why a limited guardian is requested, the duration of the limited guardianship, provisions for parenting time and child support, and any other provisions the parties agree that the parents must abide by. If a parent who agreed to the placement plan substantially fails to comply with the plan without good cause, then the probate court may take action to terminate that parent’s parental rights.
Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the legal requirements for a limited guardianship are satisfied, and the minor’s welfare will be served by the requested appointment, then the court shall make the appointment. Otherwise, the court may dismiss the proceeding or make another disposition of the matter that will serve the minor’s welfare.
THIRD PARTY CUSTODY (MCL 722.26c)
In Michigan, “[i]f the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.” MCL 722.25(1). However, Michigan’s Child Custody Act allows an action for third-party custody to be brought by any of the following persons:
- A third person with whom “the child was placed for adoption… under the adoption laws of this or another state, and the placement order is still in effect at the time the action is filed”, and “[a]fter the placement, the child has resided with the third person for a minimum of 6 months”. MCL 722.26c(1)(a).
- A third person where “[t]he child’s biological parents have never been married to one another”, “[t]he child’s parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under court order”, and “[t]he third person is related to the child within the fifth degree by marriage, blood, or adoption”. MCL 722.26c(1)(b).
- A guardian or limited guardian of a child appointed by the probate court. MCL 722.26b(1). However, “a limited guardian of a child does not have standing to bring an action for custody of the child if the parent or parents of the child have substantially complied with a limited guardianship placement plan regarding the child…”. MCL 722.26b(2). “Upon the filing of a child custody action brought by a child’s guardian or limited guardian, guardianship proceedings concerning that child in the probate court are stayed until disposition of the child custody action.” MCL 722.26b(4).
However, even if a third party does not have standing to file for custody, he or she may still possibly be awarded custody. Anjoski, 283 Mich App at 62-63. Michigan’s Child Custody Act provides that “[i]f a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:”
- Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. MCL 722.27(1)(a).
- Provide for reasonable parenting time of the child by the parties involved, by the maternal or paternal grandparents, or by others, by general or specific terms and conditions. MCL 722.27(1)(b).
- Take any other action considered to be necessary in a particular child custody dispute. MCL 722.27(1)(e).
STEPPARENT ADOPTION (MCL 710.51(6))
In certain situations where the other parent holding legal parental rights has essentially abandoned the child for a period of time, it is possible for the court to enter an order that terminates the parental rights of the wayward parent and vest parental rights with the stepparent married to the custodial parent. “If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity…, 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:”
- “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.” MCL 710.51(6)(a)).
- “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.” MCL 710.51(6)(b)).
The petitioning parent MUST have custody of the child at issue according to a court order. The Michigan Court of Appeals found with In re AGD, 327 Mich App 332, 353; 933 NW2d 751 (2019) that a trial judge properly denied a mother and stepfather’s request to terminate the parental rights of the legal father where, despite meeting the legal standards for lack of support and abandonment over 2 years, the mother did not have custody according to a child custody order issued by the circuit court. It is no longer required, however, that the biological parent seeking the adoption must have sole legal custody of the child. The adoption of the child can only occur if the other parent either voluntarily relinquishes his parental rights or they are terminated after a trial. “The petitioner has the burden to prove by clear and convincing evidence that termination of the [other] parent’s rights is warranted.” In re ALZ, 247 Mich App 264, 272; 636 NW2d 284 (2001). However, the custodial parent cannot refuse contact with the other parent and then use that as a basis to support a petition for stepparent adoption. Id at 273-277.
THE BOTTOM LINE
Stepparents do not have legal authority over their stepchildren unless they are granted such rights and responsibilities under the law. Unless that happens, stepparents should be careful to defer to the legal and biological parents for decision-making authority and not interfere with their rights. Stepparents can play a very helpful support role, for it truly takes a village to raise a child. However, stepparents that wrongfully interfere with the custody and parenting time rights of the other parent can create legal issues which will negatively impact the parental rights of their own spouse. A stepparent that believes they have grounds to obtain legal guardianship, custody or adoption of a child should speak to a knowledgeable family law lawyer right away.
If you or a loved one have questions about family law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
