The 2005 post on step-parent adoptions has received so many comments that Typepad cannot accommodate any more. Therefore, I am re-posting this article so that all of the many people who are interested in this topic can read it here and post their comments and questions below.
Step-parent adoptions
The most common adoption in Michigan is the stepparent adoption. This kind of adoption is available in cases where
(1) the parents were married at time of birth, were subsequently divorced, the custodial parent has remarried, and his or her new spouse wishes to adopt the child or children and is willing to assume financial responsibility for the child(ren) or
(2) the parents were never married, the custodial parent has remarried, and his or her new spouse wishes to adopt the child or children and is willing to assume financial responsibility for the child(ren). In the latter case, sometimes paternity has been established and sometimes it has not been determined.
Consent of the biological non-custodial parent is usually required for a stepparent adoption. However, if a biological parent has “abandoned” the child, then Michigan law provides that the parent’s rights to the child may be involuntarily terminated if:
(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, AND
(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.
Be aware that the court must determine that the requirements of subsections (a) and (b) are both satisfied. Also, if the child is 14 years of age or older, the child’s consent to the stepparent adoption is required.
Adoption cases have long been of special interest to Jeanne Hannah. To contact Jeanne Hannah with your questions or to view her Family Law website, click here.
The adoption code provides, “If a person desires to adopt a child or an adult … that person, together with his wife or her husband, if married, shall file a petition with the court.” MCL 710.24(1)
Under that provision, a single man or woman may adopt a child or a married couple may adopt a child. However, as the code is presently written, an unmarried couple of the same sex or opposite sexes cannot adopt a child. Since same-sex persons cannot marry under current Michigan law, neither can they adopt as a couple. Neither can an unmarried biological parent consent to the adoption of his or her child by another unmarried person in order to achieve the goal of two unmarried persons winding up as the legal parents of a child. This is known as a “second parent adoption.” There have been numerous efforts to amend the statute to permit second parent adoptions, but none have succeeded.However, in 2009, the Michigan Court of Appeals decided a case involving two Michigan women who had adopted three children from China. The adoption was accomplished in Illinois, where adoptions by same-sex couples is legal. When the parties' relationship broke up, one of the parents cut off contact with the other parent who then sued for custody and/or parenting time. The Court of Appeals held that since the adoption was legal in Illinois when it was done, then Michigan Courts should recognize the adoption.What may work, then, in your situation is to finalize the adoption in a state that recognizes second parent adoptions.You may read Giancaspro v Congleton, Docket No. 283267 (Michigan Court of Appeals), Unpublished, Decided February 19, 2009 here. http://tinyurl.com/7fjrxck
Posted by: Jeanne M. Hannah | January 13, 2012 at 06:31 PM
I am wondering if a second parent adoption would work for same sex couples.
Thank you
Posted by: Karrie Snyder | January 13, 2012 at 01:50 PM
Nate, thank you for your thorough explanation of how your step-parent adoption process went. What a wonderful result. I believe that many parents will be helped by the information you have provided. It's always a judicial determination whether the parenting time was "regular and substantial" and whether the support was "regular and substantial." Judges have a great deal of discretion in making that determination. I am very happy for your family that you obtained this good result. Jeanne
Posted by: Jeanne M. Hannah | November 30, 2011 at 10:34 AM
I would like to leave a comment regarding the outcome of my specific case that I actually posted about here several years ago. My wife and I wanted to terminate the parental rights of the biological father who was a nasty and abusive person. At the time the biggest concern was meeting the criteria of subsection A & B of Michigan law. In our situation the biological father had completed parenting classes and supervised visitations. The next step was to work out a visitation arrangements for the ongoing non-supervised visits. The biological father's goal was control and revenge but we still had to comply as he kept "playing ball" with the system. After refusing our request to take a drug test the judge ordered no visitations until he was willing to complete a drug test! Needless to say much time went by w/ no contact. Our contact information was on file at court but was redacted from all court documents. The biological father needed to contact our attorney or the available address on file if he wished to pursue any communication w/ us or our child. Child support was very irregular and only collected through wage garnishments, tax intercepts, or jailing. We never requested an increase, he actually contacted FOTC and had his support reduced to around $50 a month because of employment issues! The problem we kept facing was 6 months, 12 months, 18 months would pass and he would become employed and we would receive payments through wage garnishments and end of the year tax return intercepts. We ended up going to trial with the biological father contesting the adoption and fully expecting to win based on child support garnishments over the years (he also promised to pursue visitations since we even attempted to terminate his parental rights).
The good news? We won! The judge found that he could have completed the drug test and pursued visitations at any time but did not. Also the contact information available was sufficient even though the biological father did not have a direct address/telephone to reach us. In regards to the child support which was the biggest concern, the judge found that he had regularly and substantially failed to meet the criteria. Specifically, he was in arrears since day 1, large gaps of time went by with no payments (despite gaps being less than 2 years), and he contacted FOTC to reduce his support to a paltry amount that he still wasn't paying. His own testimony worked against him too but I won't get into that.
We waited to file until we had 3 years of no contact, a 2 year window of time where almost 18 months passed with no child support payments, we had been married for more than 3 years, and had 2 other siblings. We prayed an awful lot too.
Posted by: Nate | November 29, 2011 at 10:46 PM
Angela, a step-parent adoption is certainly a good option in your case. With the non-support and non-contact, you could terminate the father's parental rights and do a step-parent adoption. This is a more complicated procedure than one with consent, so you may wish assistance from a lawyer. Call me if you wish to consult with me.
Jeanne
Posted by: Jeanne M. Hannah | October 18, 2011 at 06:41 AM
I have 2 children who my husband wants to adopt.the bio dad owes 47 thousand in arrears and the only contact is weekly calls that we initate.he hasnt visited in 3 years and has been court orded supervised visits.he will not cooperate with the court order so he doesnt visit at all.will the phhone calls ive made happen prevent fulfilling the requirements for step parent adoption?
Posted by: angela | October 17, 2011 at 03:19 PM
Robin, only you and your husband can pursue this. Start with the Adoption Specialist at the Family Court in the county where you live. If you need help with this, please call my office and we can help you get started with the process and guide you along the way.
Posted by: Jeanne M. Hannah | August 17, 2011 at 10:52 AM
in the past we have asked my husbands Ex wife if she would terminate her parental rights. She has agreed to it but no one has ever pursued it. We arent sure where to begin or even if we can start the process or if she has to. She just recently sent me a letter stating that if the courts were going to keep giving her the run around she would get a lawyer and terminate her rights because no one will tell her what to do with her money. We are fine with her NOT paying. BUt from what I have read I will need to adopt the kids in order for her to NOT pay. She lives in Fl. She barley calls once a week and shes only been back to see them 1 time in 10 years. We have taken them to her about 5-6 differant times. Does any of this help us? She just sent our oldest daughter a letter on FB asking them if they wanted a relationship with them. We would never and have never kept her from them or visa versa. thanks
Posted by: Robin Tugan | August 17, 2011 at 10:39 AM
Carla, my answer is coming soon. Jeanne
Posted by: Jeanne M. Hannah | September 19, 2010 at 01:56 PM
My sons father died and they recieve survivor benafits from social security if there stepparent adopts them will they still recieve these benafits
Posted by: carla | September 17, 2010 at 11:16 AM
Ella,
I always hate to see a court order that provides for no support because it can inhibit a parent's ability to get a termination for a stepparent adoption. I am hopeful that, perhaps, your court order states specifically that the reason there is no child support is because it is to facilitate her ability to exercise parenting time. Combine that with her failure to bother to see the children unless you do the transportation and you may be able to get a termination of parental rights for the adoption. Every case is different, though, and every judge responds differently to this type of request.
I don't suppose that there is any reason why she would consent to a step-parent adoption . . . since she has so few responsibilities with respect to the children. If she would consent, then it would be easy.
Posted by: Jeanne M Hannah | January 07, 2010 at 10:00 AM
What exactly does "regularly and substantially failed or neglected" mean? We would like to get bio mom's rights terminated and have me adopt the kids (3.5, 4.5, 5.5). If my husband has sole custody and CO says we take the kids across the country for supervised visits with biomom, which we do, but she chooses not to come to the kids for her week, would that count? She has the contact/visits that one time, but only because we do what we are supposed to do. She's also calling about every two to three weeks, except for the next 2 months because she's in jail. No support is ordered due to the cost of her coming across the country to see the kids-- which she's not doing. She's supposed to also pay half of the uninsured medical expenses- luckily we've only had $100 worth which we paid and sent her a receipt, but she refused to pay half.
She has also claimed 2 of the 3 kids on her state assistance/food stamps and got caught with welfare fraud (no jail time) and has used the 5.5 year old's social security number to open accounts which she left unpaid. Since she's on the birth certificate she can get the new soc # if we got them changed so that's pointless unless I adopt them. Is that sort of stuff grounds for termination?
Posted by: Ella | January 07, 2010 at 12:11 AM
A few months ago I testified infront of the house judiciary on a bill that potentially would have been a mess for step parents and bio-parents. Also grand parents and other relatives it was the second parent adoption bill. I testified against this bill however since it was twisted to make it easier for the GBLT community to take children from thier families and give them rights that the people have already voted against thru Prop 2. I think that we need to get the system to promote both parents being actively involved with the raising of children before we just toss one of the bio-parents out the window. The Rood case was just one example of how the system favors one parent over the other at a high cost to the children involved
Posted by: Joemaflage Familyrights | December 01, 2009 at 10:42 AM