By: Amanda Chapman
About one year ago, the Michigan Court of Appeals recently gave us one more
reason to care about legal custody when negotiating a divorce with minor
children. During the divorce process it
is often difficult for those involved to consider the future and a possible
remarriage down the road.
If we are lucky, cupid strikes again, resulting
in a second or third nuptials. Sometimes these marriages result in the progression toward stepparent adoption of their spouses’ children.
The lesson learned by this recent Court of
Appeals case, In re: AJR, Minor, is that an award of joint legal custody in a divorce judgment may
result in a more complicated legal process down the road in the event that a
stepparent wishes to adopt the child of their spouse.
In this case from Kent County Circuit Court, a father’s
parental rights were terminated under the stepparent adoption statute [MCL710.51(6)] on the basis that father had failed to comply with a child support
order and had neglected to visit his child during the previous two years.
The
Michigan Court of Appeals reversed the family court’s decision by determining
that the stepparent adoption statute does not apply when the parents have joint
legal custody. It turns out that father
was awarded joint legal custody of the child in the divorce judgment, thus having a say in the proposed adoption proceedings.
Mother was awarded joint legal custody and
sole physical custody, relative to the biological father. Mother then remarried and was hopeful that her new
spouse could adopt her child. The biological father
refused to consent or agree to the termination of his parental rights in order
to facilitate the stepparent adoption.
When the Circuit Court granted the
stepparent adoption, terminating father’s rights despite his previous award of
joint legal custody, father's appeal was successful. Our intermediate appellate court held that the statutory language of the
stepparent adoption statute:
[i]s to be construed as requiring the parent initiating termination proceedings to be the only parent having custody…the rights of a parent who maintains joint legal custody are not properly terminated under [the statute]. [Emphasis and brackets supplied.]
Now, the case is being considered on further appeal by the Michigan Supreme Court; oral arguments took place last fall and a decision by the High Court could come at any moment.
The takeaway for parents who are going through a divorce with minor children is to make sure that your divorce decree addresses legal custody. You never know what the future will bring, but it is folly to open the door for a possible parental rights termination proceeding in the event your former spouse remarries.
Post Script: In June 2014, the Michigan Supreme Court affirmed the Court of Appeals ruling in this case thus, it is now more important than ever to take custody into account when negotiating a custody judgment in family court.
The takeaway for parents who are going through a divorce with minor children is to make sure that your divorce decree addresses legal custody. You never know what the future will bring, but it is folly to open the door for a possible parental rights termination proceeding in the event your former spouse remarries.
Post Script: In June 2014, the Michigan Supreme Court affirmed the Court of Appeals ruling in this case thus, it is now more important than ever to take custody into account when negotiating a custody judgment in family court.
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