In a recent decision by the Michigan Supreme Court, the justices held that a stepparent may not adopt their spouse’s child unless their spouse had full legal custody of the child. If the spouse has joint legal custody, the Court does not have the authority to terminate the parental rights of the other parent’s parental rights.
Stepparent adoptions are governed by statute MCL 710.51(6). The child cannot be adopted by the stepparent until the parental rights of the other biological parent are terminated either voluntarily or involuntarily. Voluntarily is the easiest as all the other parent has to do is appear before the Court and state on the record that he wishes to voluntarily give up his parental rights and that he believes it is in the best interest of the child to be adopted by the stepparent. If the other parent does not give up his parental rights voluntarily then the stepparent and spouse must petition the court to involuntarily terminate the parental rights. After an initial determination by an attorney referee, the matter goes before one of the probate judges. The petitioner must establish by clear and convincing evidence that the parental rights of the other parent should be terminated.
Termination of Parental Rights in Stepparent Adoptions
The relevant portion of the Michigan stepparent adoption statute states that for purposes of a stepparent adoption, the parental rights of the biological parent may be terminated if that parent has both failed and neglected to provide regular and substantial support for the child and regularly and substantially failed to visit, contact, or communicate with the child. The statute allows for such termination of parental rights if all three of the following exist:
1) The parents of the child are divorced, or the parents of the child are unmarried and the father acknowledges paternity, or a putative (presumed biological but not legal0 father in some instances
2) The parent who has legal custody of the child subsequently remarries, and
3) That parent’s spouse (stepparent) petitions to adopt the child.
Clearly the statute refers to a parent that has sole legal custody and not joint legal custody.
Stepparent Adoptions When the Spouse Only Has Joint Legal Custody
What if the stepparent’s spouse only has joint legal custody? Does that mean the stepparent is without remedy and the adoption can never take place if the other parent chooses not to voluntarily terminate his parental rights? The answer is no, the adoption may still take place and the stepparent is not without remedy. The stepparent’s spouse can only seek a modification of the custody agreement from joint legal custody to full legal custody.
Michigan Relative and Stepparent Adoption Attorney
Adopting a relative or stepparent is a very complicated process. You need someone with experience in navigating through the legal process to help you so you can concentrate on the newest addition to your family. If you are interested in adopting your relative or stepchild please contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan adoption attorney.
Helping people adopt relatives and stepchildren throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Kent, Calhoun, Washtenaw, Kalamazoo, Shiawassee, Jackson, Livingston, Barry, Genesee in the cities of Lansing, Charlotte, St. Johns, Ithaca, Howell, Jackson, Corunna, Battle Creek, Kalamazoo, Hastings, Ann Arbor, Flint.