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