UPDATES IN MICHIGAN FAMILY LAW

Should State Courts Appoint a GAL in Cases Seeking Opening an Adoption to ID Birth Parents?

Ronald Nelson, family lawyer in Lenexa, Kansas brought to our attention this week an Iowa case in which an adult sought access to court files related to her adoption. Her married parents had given her up for adoption 50 years earlier. Knowing she had married parents who gave her away is a tough and deep rejection for anyone. Perhaps her parents believed that their poverty caused by the Great Depression was a reason to give her a chance at "a better life." But she will never know because the court turned down her request to identify her parents. She, like so many other adoptees whose parents did not register with the state registry giving permission to be identified if an adult adoptee came looking for him or her, is left with the question whether her birth-mother "chose" to give her up for adoption, made the adoption decision on her own, or had other choices available to her. She’s left with a sense of rejection—believing that her mother and father rejected her. She has no closure. Appointment of a GAL would have at least allowed a neutral contact (and notice of hearing) so that the birth parents could decide whether they wanted to be identified. (They had not registered with the State's Adoption Registry, and it probably did not exist 50 years ago). The Iowa case, In Re R.D. Download In Re R.D.

Ann Fessler, a professor of photography at Rhode Island School of Design, wrote a most important book published in 2006 that should be required reading for all of those people who work in the field of adoption and also those who oppose Planned Parenthood and who believe that Planned Parenthood’s services—most of which involve health care and birth control—not abortion should be de-funded. Fessler’s book is titled: The Girls Who Went Away: The Hidden History of Women Who Surrendered Children for Adoption in the Decades Before Roe v. Wade.

DeBoer v Snyder, et al Decided by 6th Circuit

In a 2-1 decision on Thursday, November 6, 2014, the Cincinnati-based 6th U.S. Circuit Court of Appeals reversed federal district court judges in Kentucky, Michigan, Ohio and Tennessee who had struck bans on same-sex marriage and said the issue is most appropriately decided in the political arena. Case No. 14-1341, April DeBoer, et al v. Richard Snyder, et al, (6th Cir. issued 11/06/2014) For Publication.

I'm going to talk today about the dissent--because this is what caught my eye and appealed to me as a family lawyer who cares deeply about the  constitutional rights implicated in these cases. For, as Judge Martha Craig Daughtrey, in dissenting, says “But what about the children?”  That's a critical issue that the majority leaves unanswered.

Judge Daughtrey, in dissenting, begins with this quotation:

“The great tides and currents which engulf the rest of men
do not turn aside in their course to pass the judges by.”
Benjamin Cardozo, The Nature of the Judicial Process (1921)

She again makes clear her disappointment with the majority, as she concludes her 22-page dissent as follows:

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

In Re AJR | Michigan Supreme Court Ruling on Step-Parent Adoptions

The Michigan Supreme Court has finally handed down its decision in In Re AJR--a step-parent adoption case. According the the supreme court, the constitutional rights of a noncustodial parent ["NCP"] who has joint legal custody trump the right of a child or children to live in an intact family despite the failure of that NCP to pay regular and substantial support and to maintain a regular and substantial parent-child relationship in the two years prior to filing of the step-parent adoption petition. If the NCP with joint legal custody will not consent to the adoption, then it will not be permitted by the adoption code. Only if the NCP with joint legal custody has his or her parental rights terminated for neglect or child abuse may a stepparent adoption proceed.

I want to personally thank Scott Bassett who gave tirelessly of his time, expertise and efforts to take this case on a pro bono basis up on application for leave to the Michigan Supreme Court. Traci R. Gentlozzi has written a comprehensive article pointing out the pitfalls and problems created by this decision. Thanks to American Academy of Adoption Attorneys member Herbert Brail for his contributions to the analysis in that article. The article may be read here:

Michigan Supreme Court Grants Leave in In re AJR

On October, 23, 2013, the Michigan Supreme Court granted leave in the case In re AJR. This is a step-parent adoption case that has important ramifications for relative adoptions. The Court of Appeals published decision, sought to be reversed by the petitioners in this adoption case, was discussed in length in April 2013. You may reviewed that discussion here:

Important Ramifications for Step-Parent Adoptions in New Decision

The Michigan Supreme Court's directive as to issues to be briefed may be seen here:

Download Order Granting Leave Michigan Supreme Court , In re AJR, Sept. 23, 2013

 

 

http://jeannehannah.typepad.com/blog_jeanne_hannah_traver/2013/04/important-ramifications-for-step-parent-adoptions-in-new-decision.html

Important Ramifications for Step-Parent Adoptions in New Decision

In an astonishing opinion released on April 18, 2013, In the Matter of AJR, Docket No. 312100, [For Publication], Michigan’s Court of Appeals held that the trial court improperly granted a step-parent adoption under the adoption statute, MCL 710.51(6), where the parent objected to termination of his parental rights and had joint legal custody under a judgment of divorce. What made the opinion so stunning was the Court of Appeals’ statutory interpretation of MCL 710.51(6). What a difference a word makes . . .

The COA held that because the child’s biological father shared joint legal custody with the mother, his parental rights could not be terminated pursuant to MCL 710.51(6) to make way for a step-parent adoption without his consent.

I have just never thought about MCL 710.51(6) in this way—I’ve never parsed it out in this manner. Even Respondent Father’s trial attorney did not raise this objection in the trial court. When the issue was raised on appeal, rather than refusing to consider the unpreserved issue for appeal, the COA said this:

Screening Prospective Adoptive, Foster, And Kinship Placements | Standard of Care

In a recently published law review article, Professor Daniel Pollack explains the need for more clear standards regarding risk assessment and careful screening of prospective adoptive, foster and kinship placements for children to avoid some of the tragedies that have occurred.

Professor Pollack states:

"The lack of a clear legal “standard of care” for the evaluation and screening of prospective adoptive, foster, and kinship applicants directly undermines the child placement process, the physical and emotional development of children placed in adoptive and foster homes, and the adjudication of legal issues arising when children are harmed. Often, it is only when a lawsuit is filed that society is forced to take a hard look at its legal expectations, and it is then compelled to acknowledge that there may be a very real distinction between child welfare’s “best practice” standard and the legal standard of care.

LGBT Rights in the US, State by State

The Guardian has published some very interesting data regarding the civil rights (by statute) for gay, lesbian and transgender people on a range of issues, including marriage, hospital visitation, adoption, housing, employment and school bullying. The charts are illuminating, to say the least. Laws in America have evolved to allow — but in some cases ban — rights for LGBT folks on those issues.

The interactive charts published by the Guardian show the trends. By region, the Midwest and the Southeast are the most conservative and offer LGBT folks the least.

To view these interactive charts online, click here.

Father's rights when adoption of child is secret

This second article in our series on paternity examines specific rights of putative fathers to maintain a parent-child relationship. We look at a biological father whose rights were thwarted when the mother gave the child up for adoption despite his efforts to ensure that she would not do so. Interference by a mother and/or her family resulted in some significant financial consequences. Unfortunately, the jury's award of money was overturned on a technicality.

In Smith v Maloof, 722 So.2d 490 (Miss. 1998), the mother and her parents conspired to deprive a father of his parental rights. This case was fought in Mississippi.

In August 1991, Joe W. Smith, Jr. (Joey) and Natalie Cash Malouf (Natalie) were in a dating relationship, and Natalie became pregnant. Against Joey's wishes, Natalie decided to give the child up for adoption. Natalie then moved away, allegedly to hide from Joey while she was pregnant. Three months before the child was born, on January 14, 1992, Joey initiated legal proceedings against Natalie in the Leflore County Chancery Court seeking a declaration of paternity, order for custody of the child and injunctive relief to stop adoption proceedings within and outside Mississippi. On March 12, 1992, Joey also filed for a temporary restraining order to enjoin the commencement of adoption proceedings. On March 27, 1992, the chancellor issued a permanent injunction in the form of a final judgment which enjoined Natalie and "all who might assist her" from proceeding with an adoption.

On April 21, 1992, the child was born in Marietta, Georgia, then taken to California. From there, the child was adopted by Canadian citizens. On June 16, 1992, Joey and his parents filed suit in the Circuit Court of Leflore County against Natalie and her parents, Alex J. Malouf, Jr. and Patricia Malouf, for intentional infliction of emotional distress, conspiring to prevent Joey from exercising his parental rights and conspiring to effect illegal adoption of a child born out of wedlock. In September 1992, the Maloufs filed a motion to dismiss the complaint claiming that there was no cause of action for which relief could be granted. The trial court granted the motion. Joey appealed that decision in November 1992.

The Supreme Court of Mississippi upheld Joey’s cause of action for intentional inflictions of emotional distress. Smith v. Malouf, 722 So. 2d 490 (Miss. 1998). Ultimately, however, the father’s case was dismissed when the court held that the mother had a constitutional right to travel to California that defeated the father's right to establish a custodial or support relationship with the child.  Download Smith_v._Malouf

The question is: "Would Smith v. Malouf case be decided differently if it were filed today?" I suppose that the answer to that is "It depends upon who is sitting on the U.S. Supreme Court" (if the case reached that level). Many changes have occurred since 1998 that could change the results in Smith v Malouf. While the constitutional right of a mother to travel with child in utero, give birth in New York and maintain a paternity suit in New York trumped a biological father's right to maintain a paternity action in California in McKenna v Miller, when the Court held that the Uniform Child Custody Jurisdiction and Enforcement Act does not apply to a fetus and that a mother's constitutional right to travel does not defeat the father's right to be notified upon the birth of the child and to his right to a hearing on his parental rights.  Download McKenna_v_Miller That case is discussed in this blog post.

Step-Parent Adoptions | Meeting the Tests of Support and Contact

Because not every reader will see all of the many comments and responses to comments, I want to call your attention to a very wonderful comment on a step-parent adoption blog post. In this comment, Nate explains the difficulties and the success his family experienced in terminating the parental rights of the biological father so the adoption could take place.

As many of you know, if the biological parent won't agree to the adoption, then the other parent must prove that the parent whose rights are sought to be terminated (a) did not have "regular and substantial contact" during the two years immediately preceding the filing of the petition for adoption and (b) did not have a "regular and substantial support relationship with the child" during the two years immediately preceding the filing of the petition for adoption. Parents pursuing a step-parent adoption feel caught in a dilemma where there is some sporadic contact and/or support.

Increase in Numbers of Same-Sex Couples Adopting Children

The New York Times reports that the incidence of same-sex couples adopting children has increased sharply. Although only two states — Utah and Mississippi prohibit same-sex couples from adopting, they face significant legal hurdles in about half of all other states. Primarily, this is because they cannot legally marry in those states. Gary Gates, a demographer at the Williams Institute on Sexual Orientation Law at the University of California, Los Angeles, was quoted as saying that about 19 percent of same-sex couples raising children reported having an adopted child in the house in 2009, up from just 8 percent in 2000.

Advocates for gay families say are two distinct trends are reasons for the increase in these adoptions:  the need for homes for children currently waiting for adoption —(now about 115,000 in the United States) and the increased acceptance of gays and lesbians in American society.

Woman charged with felony in infant death

The Traverse City Record Eagle published an article today about criminal action against a mother who allegedly gave birth to a baby downstate, dismembered her infant, stuffed it in a backpack, and took it to her home in Boyne City to bury the backpack in the backyard. According to law enforcement, the mother is charged with a felony count of disinterment and mutilation of a body, and a misdemeanor count of unlawful disposition of an unclaimed body. An autopsy had produced no evidence that the child was born alive.

Once again, emphasis needs to be placed on getting the word out about how women, mostly young teenagers, can safely and without any risk of criminal charges, turn over their healthy live babies to Safe Haven facilities so that an unwanted baby may be adopted. In light of recent infant deaths in Grand Traverse County, I publish details about the Safe Delivery of Newborns Act hoping that pregnant women and the people who come into contact with them--know they are pregnant--know that they are at risk, either because of emotional or social problems, to abandon their babies, likely ending in death of a healthy infant. You could be the person who not only helps a mother deal with what seems overwhelming to her, but also save the life of an innocent. Here's what you can do to help.

In the wake of infant death / abandonment, moms need more information

Over the past four months, four dead infants have been found in the Traverse City area alone. One body was found in a dumpster, one in a back yard, one in a basement, one in a backpack. In each case, the mothers have been identified. Criminal investigations have been launched and in some cases, charges are pending.

In May 2010, I wrote about Michigan Safe Delivery of Newborns Act that allows mothers to drop off newborn infants anonymously at hospitals, fire departments, police stations. No questions are asked. In the wake of two recent news reports in the Record Eagle of infants who have been abandoned / who have died, I feel that we are not doing a good enough job in getting information to young mothers who need help. I am compelled to plead with young moms who feel that they have no other options. Choose adoption, not abandonment, infant death and prison time. You'll have a brighter future and so will your child. There are people out there to help you and your baby. No names. No judgmental attitudes. Please see the important information below.

The Safe Delivery of Newborns Act | Help for young moms & infants

Greater publicity about options available to young mothers who want to legally surrender their children for adoption is provided in a community-based effort to avoid infant deaths such as occurred in several cases locally where newborns have been found abandoned and dead in the Traverse City area.

Lorrie Jorgenson, pregnancy counselor at Bethany Christian Services in Traverse City said, "This provides a way out for a desperate person. Fear and desperation would lead to the type of tragedies this community has witnessed."

How many parents may a baby have?

The New York Times published an Op-Ed piece near the end of January that's been sitting in my to-do pile. The issue raised is whether a baby can have three (or more) biological parents. Non-traditional families are more prevalent today than ever before. Parenthood may occur in a Lesbian relationship with one partner being the "host" parent (the biological parent who conceives using sperm of a third party). Gay men have also used surrogacy or adoption to form family units with children. The other partner then is the supportive second parent. If a "second parent adoption" is legal, the second parent's parental rights can be protected. Otherwise, there have been serious risks when the parents' relationship sours.

“I’m a real boy now. I’m not a boy in foster care anymore.”

After the final hearing confirming his adoption, a 13 year old boy said to Liz Johnson, a social worker and “recruiter” with an adoption coalition:  “I’m a real boy now. I’m not a boy in foster care anymore.”

What could be worse than spending most of your childhood in a foster care home . . . or a series of foster care homes? One thing is certain: the older a child is, the less likely that there will be a family out there willing to adopt. Most people seeking to adopt a child have an infant in mind. Older children carry "baggage," whether it's abuse/neglect in their families of origin and/or abuse/neglect within the system that seeks to care for them while attempting to find that perfect forever family.

Imagine . . . just imagine being 13 or 14 or 15 years old, having lived in foster care most of your life and feeling unable to invite a friend from school to your home because you are so different from your classmates. Imagine feeling like you are not a "real boy" because you don't have parents and your schoolmates do. Imagine feeling as though your home is but a temporary place. A sense of identity, family and permanency . . . a good self concept . . . these are keys to success that are denied to such children.

Step-parent Adoptions

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.

IMPORTANT UPDATE: November 7, 2013

To read other posts about step-parent adoptions, especially a 2013 post about a serious challenge to the lagality of these adoption that will be resolved by the Michigan Supreme Court, see the following posts:

In the Matter of AJR,  a very important case that will determine the future of step-parent adoptions  [See Post here]

Access all step-parent adoption posts here.

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 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.

IMPORTANT UPDATE: November 7, 2013

To read other posts about step-parent adoptions, especially a 2013 post about a serious challenge to the lagality of these adoption that will be resolved by the Michigan Supreme Court, see the following posts:

In the Matter of AJR,  a very important case that will determine the future of step-parent adoptions  [See Post here]

Access all step-parent adoption posts here.

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.

Adoption fraud | Should third parties keep child?

Glenn Sacks' Blog Fathers & Families featured an article authored by Robert Franklin, Esq on September 24th, 2009 that caught my eye. I frequently am contacted by fathers who are concerned about their parental rights in cases where the parents have never married. Franklin wrote about a biological father who opposed adoption of his child but the Texas court named prospective adoptive parents as "managing conservators" [in Michigan's parlance, the primary physical custodial parent]. Four years later, a Texas appellate court is sending the matter back to the trial court for a re-determination whether the biological father should have custody of his child instead of third parties.

Last week, while in court on another matter, I listened to oral argument in a case involving a father whose child has already been adopted -- a father who is hoping to overturn the adoption that had been granted because the mother failed to identify him at the time of the adoption in order to destroy his ability to have custody of the child she did not want, the child for whom she had arranged a private adoption.

Adoption of adult partner upheld by Maine Supreme Court

A decision by the Maine Supreme Court last week, in an inheritance dispute of considerable value involving a very large trust set up by one of the founders of IBM for the benefit of his descendants, the Court ruled that an adult adoption of a same-sex partner was legitimate.  The issue largely centered on whether the adoptee-partner was "a descendant" and part of the trust beneficiary class who could gain a share of the substantial trust. According to the Court, she is.

Michigan court to oversee a custody dispute in same sex relationship

The news is full of controversial topics these days. On February 20, 2009, the Michigan court of appeals said that courts can oversee a custody dispute between lesbian parents who adopted in Illinois, even though Michigan doesn't formally recognize gay relationships.

The court ruled 2-1 that the U.S. Constitution requires Michigan courts to recognize [both mothers] as adoptive parents. It reversed a trial judge in Berrien County who said Michigan's 2004 voter-approved gay marriage ban kept [one mother] from enforcing [her] parental rights.”

The focus of the majority was on the parent-child relationship, and not on the relationship between the two parents. Scott Bassett, an appellate attorney, said:  "[This was] an odd decision in many ways, including the lack of documentation proving the Illinois adoption.  The majority was uncharacteristically comfortable with this lapse.  I don't think I've seen a panel ignore such significant record/procedural flaws in nearly three decades of appellate work.  That makes it hard to give much credence to the substantive decision, irrespective of how one personally views the issue of gay/lesbian adoption."

The Chicago Tribune story may be read here.

The majority decision [Giancaspro v Congleton] may be read here.

The minority opinion may be read here.

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.

What Rights Does an Unwed Biological Father Have When a Mother Wants to Give up a Child for Adoption?

A Michigan attorney recently opined that a biological mother has the right to do anything she wants to do with a child regardless of a biological father’s wishes. While I certainly respect this attorney's right to express his opinion on moral issues, I strongly disagree with the opinions he has expressed on legal issues.

It is true that the law provides that a mother can terminate her pregnancy without the father’s consent. It is not true that a mother can give a child up for adoption without the biological father's consent and/or that she can avoid the biological father exercising any rights unless she chooses to keep the child. A father’s parental rights are substantial and are protected under the Due Process clauses of both the Michigan and the United States Constitutions.

Now I'm up here on my "constitutional highhorse" and my goal is to define what legal rights a father has to a child if he is not married to the mother. This discussion does not include a situation where the mother is married to another man during either conception or birth. That situation raises even more complicated issues that were discussed on this blog in April 2005. [You can see Numerick v Krull, decided by the Michigan Court of Appeals on February 15, 2005, Docket No. 249172 for the state of Michigan law.]

The issues involving an unmarried mother and an unmarried father are many and are complicated. But Michigan’s Adoption Code clearly requires notice and hearing must be provided to a putative father before his parental rights may be terminated to permit adoption of a child. If his consent to an adoption is not obtained and where a mother refuses to provide the identity of the biological father to a court, an adoption may later be subject to challenge provided that the father is subsequently able to learn that the child has been given up for adoption without his knowledge and consent.

Most adoptive parents would prefer to avoid the uncertainty of a later challenge to an adoption by making sure that a biological father’s identity is known and that his consent is given or that his parental rights are otherwise legally terminated.

How a Biological Father Can Protect his Parent-Child Relationship?

Access Blog Archives: all step-parent adoption posts here.

IMPORTANT UPDATE: November 7, 2013

To read other posts about step-parent adoptions, especially a 2013 post about a serious challenge to the application of adoption statutes that will be resolved by the Michigan Supreme Court, see the following posts:

In the Matter of AJR,  a very important case that will determine the future of step-parent adoptions  [See Post here]

Do you need help with a paternity or child support case? Find a Michigan Family Lawyer near you.

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.

To read other posts about step-parent adoptions, especially a 2013 post about a challenge that will be resolved by the Michigan Supreme Court, see the following posts:

In the Matter of AJR,  a very important case that will determine the future of step-parent adoptions  [See Post here]

Access all step-parent adoption posts here.

Do you need help with a step-parent adoption case? Find a Michigan Family Lawyer near you.

Technoati tags: stepparent adoption, adoption