Michigan Military Divorce

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.

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.

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.