Monday, March 31, 2014

Stepparent Adoption Complicated by Legal Custody Label

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.  

Sunday, March 30, 2014

Conscious Uncoupling in Los Angeles

Gwyneth Paltrow: Recently
and Consciously Uncoupled.
Among some of the more enlightened Hollywood luminaries, it's not a divorce; it is a "conscious uncoupling".  This is the term veteran actress Gwyneth Paltrow used on her website this week to announce the split with Chris Martin, her rocker-husband of more than ten years.

This, er, somewhat New Age phrase is the kinder gentler term for divorce.  Pop-psychotherapist and author Katherine Woodward Thomas takes credit for coining the phrase.  In fact, Ms. Thomas claims that she purchased the URL for this catchy term immediately upon hearing it for the first time in a discussion about a friend's divorce.

The catch phrase sounds like a synonym for "collaborative divorce"; a commonly-used phrase in the modern divorce industry.  Apparently, the idea behind a conscious uncoupling is that the parties simply agree to part ways amicably, using child-friendly low-stress tools.  Precisely the idea behind a collaborative divorce.

The collaborative divorce process involves sitting down with a psychologist or marriage counselor, a collaborative lawyer, and perhaps a financial consultant  -not necessarily at the same time-  to identify and resolve issues prior to subjecting the family to the jurisdiction of a family court with its deadlines and powers over purse and person.

On the West Coast, there are a few pop-professionals making a buck from the process.  Ms. Thomas is among them, offering a 5-week "conscious uncoupling" course on the Internet for nearly $300.  When Ms. Paltrow's announcement, and now the "conscious uncoupling" phrase, went viral, she credited her own holistic doctor rather than Ms. Thomas; a lapse pointedly noted by the psychotherapist in the interview she gave to the NYT.

A low-stress divorce, by whatever name, is a worthy goal.  But buyers should beware before spending money on a web-based course taught by someone with a track record of failed relationships.