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A Better Partnership
June 27, 2014

MSC holds that only the spouse of a parent with sole legal custody can adopt as stepparent

In In re AJR, the Michigan Supreme Court held that stepparent adoption under MCL 710.51(6) is only available to the spouse of a parent with sole legal custody of the child.  The statute does not apply to situations in which the child’s parents share joint legal custody.  The Court reasoned that, because the Legislature contrasted the phrases “the parent having legal custody” with “the parent who does not have legal custody” in MCL 710.43’s requirements for stepparent adoption by parental consent, it intended “the parent having legal custody” to mean the parent with sole legal custody in both MCL 710.43 and MCL 710.51(6).  The Court rejected petitioners’ argument that the term “legal custody” meant “a legal right to physical custody” when the stepparent adoption statute was added in 1980, based on its review of the joint custody rules added during the same legislative session, as well as its survey of prior caselaw, both of which confirmed that physical and legal custody were distinct concepts by that time.  
 
Petitioner-mother and respondent-father were married in 2003 and had one child, AJR, during their marriage.  They divorced in 2009, and the divorce judgment gave the parties joint legal custody of the child,  and gave sole physical custody to petitioner-mother.  Petitioner-mother remarried.  
 
In May 2012, AJR’s mother and stepfather petitioned to terminate respondent-father’s parental rights so that AJR’s stepfather could adopt AJR under MCL 710.51(6).  MCL 710.51(6) states:
 

If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father . . . and if the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:

(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.

(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.

 
The circuit court granted the petition and terminated AJR’s father’s parental rights.
 
AJR’s father appealed, and the Court of Appeals reversed, concluding that respondent-father’s parental rights had been improperly terminated given that respondent-father and petitioner-mother had joint legal custody of AJR.  As summarized here, the Court of Appeals held that MCL 750.51(6)’s language “if the parent having legal custody” must “be construed as requiring the parent initiating termination proceedings to be the only parent having legal custody,” such that the rights of a parent who maintains joint legal custody are not properly terminated under MCL 710.51(6).  The Michigan Supreme Court granted petitioners leave to appeal, and affirmed.
 
The Supreme Court first noted that there are two possible avenues for a stepparent to adopt a child: adoption by parental consent under MCL 710.51(1) and stepparent adoption under MCL 710.51(6).  MCL 710.43 provides the requirements for adoption by parental consent under MCL 710.51(1) and states “If the petitioner for adoption is married to the parent having legal custody of the child and that parent has joined the petitioner in filing the petition for adoption, that parent shall not execute a consent to the adoption. The consent of the parent who does not have legal custody of the child and whose parental rights have not been terminated shall be executed before the court may enter an order of adoption. . . .”  Because the Legislature directly contrasted the phrases “the parent having legal custody” and “the parent who does not have legal custody,” the Supreme Court concluded that it intended “the parent having legal custody” to mean the parent with sole legal custody in both MCL 710.43 and MCL 710.51(6).
 
The Supreme Court rejected petitioners’ argument that petitioner-mother was the sole parent having legal custody of AJR because she was the parent with “legally sanctioned physical custody of AJR,”  which they premised on the notion that when the stepparent adoption statute was added in 1980 the term “legal custody” meant “a legal right to physical custody.”   The Court concluded that, although the legal dictionary contemporaneous with the stepparent-adoption statute arguably supported petitioners’ premise, review of the joint custody rules added during the same legislative session, as well as a survey of prior caselaw, confirmed that physical and legal custody were distinct concepts, allocable between parents, well before the Legislature wrote the stepparent-adoption statute.

Finally, the Court noted that petitioners are not without a remedy.  A parent who shares joint legal custody is free to seek modification of that custody arrangement under MCL 722.27 and may then proceed with stepparent adoption under MCL 710.51(6) after securing sole legal custody of the child.

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