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A Better Partnership
October 24, 2013

MSC to interpret non-custodial parent’s rights under Stepparent Adoption Statute

The Stepparent Adoption Code states, in paraphrase, that if “the parent having legal custody of the child” remarries and her spouse petitions to adopt the child, the court can terminate the other parent’s rights if the other parent both fails to provide substantial support and fails to visit, contact, or communicate with the child for two years.  The Michigan Supreme Court has granted leave to appeal in In re AJR, to determine whether a court may terminate a parent’s rights where the parent had joint legal custody but no right to physical custody.  This ruling is likely to have wide ramifications for stepparent adoptions. Here, the minor child’s biological father had no physical custodial rights and had failed to visit or provide support for his child for at least two years preceding the filing of the petition.  The biological father nevertheless had joint legal custody of the minor child, that is, the right to make important decisions in the child’s life.  The child’s mother filed a petition to terminate the biological father’s rights, indicating that her husband, the child’s stepfather, wished to petition to adopt AJR.  The trial court granted the petition. The biological father appealed the trial court’s ruling and argued that the trial court could not terminate his parental rights under MCL 710.51(6) because he and the mother had joint legal custody and that the statute only acts to terminate the rights of those parents who have no custodial rights.  The Michigan Court of Appeals sided with the biological father and reversed the trial court’s termination of parental rights.  Specifically, the Court held that the statute’s language, “the parent having legal custody of the child,” requires the parent initiating termination proceedings to be the only parent having legal custody.  Accordingly, the court held that the rights of a parent who maintains joint legal custody are not properly terminated under MCL 710.51(6). The Michigan Supreme Court has granted leave to consider the following issues:

(1)   Whether the Court of Appeals properly interpreted the statutory phrase “the parent having legal custody of the child” in the stepparent adoption statute, MCL 710.51(6), as necessarily referring to “the” sole parent with legal custody;

(2)   Whether the phrase “legal custody” in § 51(6) is synonymous with the concept of joint custody in the Child Custody Act, MCL 722.26a(7)(b), whereby “the parents share decision-making authority as to the important decisions affecting the welfare of the child”; and

(3)   If the Court of Appeals did not err in interpreting the statute, what, if any, remedy is available to the petitioners in this case that is consistent with the general purposes of the Adoption Code, MCL 710.21a.

The Court has invited the State Bar of Michigan Family Law Section and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file briefs amicus curiae.  

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