UPDATES IN MICHIGAN FAMILY LAW

What if father opposes adoption of child born out-of-wedlock?

I am sometimes asked whether a biological father must automatically lose his rights to a child conceived out of wedlock if the mother places the child for adoption and he hasn’t been involved up to that point in time (i.e, he's a "do-nothing father.")  A more serious question arises when the mother wants to place the child for adoption, isn't ready to be a single parent, feels strongly about not involving the biological father, and wants the child to have a 2-parent family.

In a case for publication, the Michigan Court of Appeals has answered this question for us. The court’s decision provides family lawyers dealing with adoption cases with some practice pointers in how to deal with similar cases in the future, and certainly informs use about how we might counsel a mother-to-be so that she has more control over what happens.

Here is a brief chronology of what occurred:

Step-parent adoptions and the incarcerated parent

A question was recently raised in a discussion group in which I participate whether an incarcerated parent can--upon release--avoid an involuntary termination of his parental rights by claiming that because he was in prison, he had no ability to provide regular and substantial support for the child for the two-year period immediately preceding filing of the petition for a step-parent adoption.

Fortunately, children's lives have the potential for greater stability with a decision made in the Michigan Court of Appeals in 1998. Subsequent unpublished decisions help parents and lawyers understand how the particular facts of their case will support an involuntary termination in a situation like this.

Grandparenting Petition and Stepparent Adoptions

Under Michigan’s Adoption Code, MCL 710.21 to 710.70, adoption of a child by a stepparent under the does not terminate a grandparent’s right to commence an action for grandparenting time with a child. In Warren v Brown (a paternity case), maternal grandparents sought grandparenting time after their daughter died. The facts are pretty convoluted:

The child was conceived out of wedlock and the mother, Warren, separated from Brown.

The mother became involved with Wright. She had a terminal illness, and married Wright the day before she died when the child was 9 months old. The mother named Wright in her will as the child’s guardian and he then became the child’s sole caregiver.

As the child’s sole caregiver and guardian, Wright remarried 3 years later.

As the child’s sole caregiver and guardian, Wright remarried 3 years later.

Wright and his wife became joint guardians. After a year of marriage, they commenced and completed a guardianship adoption.

Should Same-sex Couples Be Permitted to Adopt?

This seems like a classic example of the Burger King chain's advertising: "Have it your way." In other words, political considerations often lead a potential candidate for the presidency to speak out of both sides of his/her mouth in the hope that all of his constituents will hear what they want to hear.

The Boston Globe reported on March 14, 2006, that Massachusetts Governor Mitt Romney, in an appearance at the Southern Republican Leadership Conference in Memphis on Friday, March 10th, reiterated his position that "every child in American has the right to a mother and a father." The gathering is an important early event for those positioning themselves as presidential hopefuls. But on March 13th, Romney backed off a little, telling reporters that same-sex couples have "a legitimate interest in adopting children."

Apparently, in an effort to placate part of his constituency that favors gay and lesbian rights, Romney said he would file a "very narrow" bill aimed at letting Catholic Charities, the social service arm of the Boston Archdiocese, and other religious groups exclude same-sex couples from their adoption programs if including them violates religious tenets. But he also noted that gays and lesbians have a right to adopt.

Are Second-parent Adoptions Legal in Michigan?

Weren’t second-parent adoptions granted in Washtenaw County a few years ago? Second parent adoptions are legal by court decision or statute in California, Connecticut, the District of Columbia, Illinois, Indiana, Massachusetts, New York, New Jersey, Pennsylvania, and Vermont Second-parent adoptions have been granted in some counties in at least 15 other states. See Schacter, Constructing Families in a Democracy: Courts, Legislatures and Second-Parent Adoptions, 75 Chi.-Kent L. Rev. 933, 934 (2000). Most of the states that allow second-parent adoptions also permit joint adoptions. In four states, Colorado, Ohio, Nebraska, and Wisconsin, appellate courts have ruled that second-parent adoptions aren’t legal. [See the ABA position paper for cites, link below]

In a case discussed on April 11, 2005 on the Michigan Family Secton’s Law ListServ, the issue was whether a woman donating eggs so that her lesbian partner could bear children through artificial insemination, was a legal parent. People acting as sperm and ovum donors are allowed by a state law to avoid as a legal parent. Thus, when lesbian partners in San Francisco used the donated eggs of one partner so that the other could conceive using donated sperm, a standard ovum donor consent form was signed by one of the women. The form contains words to the effect that the person signing it waives his or her parental rights.

K.M. and E.G., in California, successfully co-parented twin girls for eight years prior to their separation. Then the birth mother claimed that she was the sole parent. Appealing a lower court decision, K.M., the non-birth parent, claimed that her signature on the form did not constitute a waiver of parental rights because she was “an intended parent” not a donor, either as defined by a statute or by the parties’ intentions.

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.

Technoati tags: stepparent adoption, adoption