I receive many inquiries in my law practice concerning step-parent adoption. A step-parent adoption can occur when a custodial parent (either divorced or never married to the non-custodial parent) marries and the couple wishes to have a court order permitting the new spouse (step-parent) to adopt the child. This will typically occur when the non-custodial parent of the child is uninvolved in the child’s life. I will refer to this parent as the “absentee” parent.
Ideally, the absentee parent is willing to “sign off” and have his/her parental rights voluntarily terminated. The absentee parent may be financially motivated because once parental rights are terminated there is no continuing obligation to pay child support. However, it is important to understand that termination of parental rights does not cancel any monies already owing in child support. Those arrearages remain enforceable and will be collected unless (a) the parties agree to waive enforcement, and (b) the court signs an order implementing the agreement. Such agreements cannot be endorsed by the court if any child support arrearage is owed to the State of Michigan, which happens if State benefits were paid to the child at any time and have not yet been reimbursed (such as MI Child health care benefits, food stamps or monetary aid).
I am often disappointed that a parent who has not seen a child in years and refuses to support the child will also refuse to voluntarily terminate parental rights. I imagine these parents (and I use that name loosely) harbor some romantic notion that s/he believes by refusing to voluntarily terminate, the child will grow up knowing the absentee parent loved them. In reality, the absentee parent is putting up a road block to the child ever having a legal parent who is present in her life and willing to parent her.
If the absentee parent does refuse to voluntarily terminate rights, the process becomes more complicated. If there is a family court judgment in place that has awarded the parties joint legal custody, then a motion must first be successfully pursued in family court to modify the order so that the custodial parent has sole legal custody. Only if a custodial parent has sole legal custody, may a step-parent adoption be pursued.
A petition to involuntarily terminate parental rights must then be filed in conjunction with a petition to permit a step-parent adoption. The matter must be set for a contested hearing at which proofs must be presented that the absentee parent has failed to substantially support and has failed to exercise visitation or otherwise maintain a relationship with the child for a period of at least two years. Note: both prongs must be met, both failure to support and failure to maintain a relationship with the child. It must be at least two years, and they must be consecutive.
If the custodial parent is successful in proving the grounds for involuntary termination of parental rights, then the hearing proceeds to presenting proof on why it is in the child’s best interests for the court to approve the adoption. The step-parent adoption statute lists a set of best interest factors and evidence must be presented on each. Only if the court is satisfied as to the factors, will the step-parent adoption be approved.
It is important to understand that every county has different forms and internal policies for processing petitions to terminate/step-parent adoptions. These procedures can be confusing but are critical to completing the process successfully. Given the complex interaction of custody and step-parent adoption statutes, and given the often confusing local adoption procedures, it is essential to retain legal counsel. Be sure you select an attorney with experience in step-parent adoptions in your county. When you interview lawyers, ask specific questions about their experience. How many step-parent adoptions has s/he handled? How many in your county? How many contested termination/step-parent adoption hearings has s/he conducted? Your child’s future is at stake. It would be a mistake to select an attorney based only on financial considerations. Experience is everything.
