Michigan Supreme Court Holds No Step-Parent Adoption Without Sole Legal Custody

On June 25th, 2014, the Michigan Supreme Court held in a termination of parental rights case that a step-parent may not adopt their spouse's child if the spouse has joint legal custody of that child with the child's other biological parent.

In In re AJR, Docket No. 147522, the Michigan Supreme Court addressed an appeal in a termination of parental rights case where a spouse attempted to adopt a child whose other biological parent still had joint legal custody of the child.

From the opinion's syllabus:

Petitioner-mother and respondent were married in 2003 and had one child, AJR, during their marriage. They divorced in 2009. The divorce judgment gave the parties joint legal custody of the child, gave physical custody to petitioner-mother, placed support obligations on respondent, and gave respondent reasonable visitation. Petitioner-mother married petitioner-stepfather in 2010, and they lived together with AJR as a family. In May 2012, petitioners filed a petition in the Kent Circuit Court to terminate respondent’s parental rights so that petitioner- stepfather could adopt AJR under MCL 710.51(6), the stepparent adoption statute. Petitioners alleged that respondent had failed to provide support or comply with a support order and had failed to visit or contact AJR for more than two years. The court, Kathleen A. Feeney, J., granted the petition and terminated respondent’s parental rights pursuant to MCL 710.51(6). Respondent appealed, and the Court of Appeals, WILDER, P.J., and METER and RIORDAN, JJ., reversed, concluding that respondent’s parental rights had been improperly terminated given that respondent and petitioner-mother had joint legal custody of AJR and MCL 710.51(6) only allows a court to terminate the rights of a parent who does not have legal custody. The panel held that the statute requires that the petitioning parent be the parent having sole legal custody. 300 Mich App 597 (2013). The Supreme Court granted petitioners leave to appeal. 495 Mich 875 (2013).

In a unanimous opinion by Justice ZAHRA, the Supreme Court held:

Stepparent adoption under MCL 750.51(6) is only available to the spouse of a parent with sole legal custody of the child, and the statute does not apply to situations in which the child’s parents share joint legal custody.

1. MCL 710.51(6) provides for the termination of parental rights in the context of stepparent adoption, stating that if (1) the parents of a child are divorced (or if the parents are unmarried but the father has acknowledged paternity or is a putative father who meets certain conditions), (2) the parent having legal custody of the child subsequently marries, and (3) that parent’s spouse petitions to adopt the child, the court may terminate the rights of the other parent if the other parent has for two or more years both failed or neglected to provide regular and substantial support for the child and regularly and substantially failed or neglected to visit, contact, or communicate with the child. When the plain meaning of the statute is considered in the context of other provisions concerning stepparent adoption, it is clear that the Legislature intended the phrase [']parent having legal custody of the child['] to refer to the parent with sole legal custody.

2. Asserting that when the stepparent adoption statute was added in 1980 the term [']legal custody['] in MCL 710.51(6) meant a legal right to physical custody, petitioners argued that petitioner-mother was the sole parent having legal custody of AJR because she was the parent with legally sanctioned physical custody of the child. Physical and legal custody were distinct concepts, allocable between parents, well before the Legislature added the stepparent adoption provision to the Michigan Adoption Code, however, and the joint custody rules established by the Legislature in the same session in which it added the stepparent adoption statute, as well as caselaw, directly contravene petitioners’ assertion that custody is an indivisible concept.

3. 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 proceed with stepparent adoption under MCL 710.51(6) after securing sole legal custody of the child.