I have just never thought about MCL 710.51(6) in this way—I’ve never parsed it out in this manner. Even Respondent Father’s trial attorney did not raise this objection in the trial court. When the issue was raised on appeal, rather than refusing to consider the unpreserved issue for appeal, the COA said this:

The COA held that because the child’s biological father shared joint legal custody with the mother, his parental rights could not be terminated pursuant to MCL 710.51(6) to make way for a step-parent adoption without his consent.

In an astonishing opinion released on April 18, 2013, In the Matter of AJR, Docket No. 312100, [For Publication], Michigan’s Court of Appeals held that the trial court improperly granted a step-parent adoption under the adoption statute, MCL 710.51(6), where the parent objected to termination of his parental rights and had joint legal custody under a judgment of divorce. What made the opinion so stunning was the Court of Appeals’ statutory interpretation of MCL 710.51(6). What a difference a word makes . . .

Respondent did not raise this issue at the trial court, thus failing to preserve the issue for appellate review. However, this Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented. Here, the issue presented is strictly an issue of law–statutory interpretation–and all of the requisite facts have been presented. Thus, in the interests of justice, we will review the issue. [Slip op page 2, citations omitted]

Facts of the Case: Respondent biological father and petitioner-mother were married and had one child, AJR, during their marriage. They divorced. The mother was given sole physical custody of the child, with both parents sharing joint legal custody in the judgment of divorce. The JOD also ordered AJR’s father to pay child support and granted him reasonable visitation with her.

Years later, the mother married petitioner-stepfather. About two years into their marriage, the stepfather and AJR’s mother filed a petition for termination of respondent father’s parental rights to allow petitioner-stepfather to adopt AJR. Petitioners alleged that respondent failed to provide regular and substantial child support and failed to maintain a regular and substantial parent-child relationship with AJR during the two years prior to filing of the petition.

Respondent Father objected to termination of his parental rights. After a two-day trial, the trial court concluded that Respondent Father’s parental rights were lawfully terminated pursuant to MCL 710.51(6) finding that (1) respondent substantially failed to provide support for AJR for the two years preceding the filing of the petition and (2) respondent substantially failed to visit or communicate with AJR during this two-year period. The trial court entered an order of adoption. On appeal, the Michigan Court of Appeals reversed, holding that MCL 710.51(6) does not apply to a parent who shares joint legal custody of the child(ren).

Step-parent adoptions have readily been granted under MCL 710.51(6) for many, many years since enactment of the Adoption Code in 1974 on grounds that the respondent parent has failed, for a period of two years immediately preceding filing of the petition, to maintain a regular and substantial parent-child relationship and has also failed to maintain a regular and substantial child support relationship with the child.

Of course, the goal of the Adoption Code is the obtain permanency, stability and security for children. I’ve done many, many step-parent and relative adoptions. The first concern most mothers express to me in these cases is this:

“But, if I tell him that I want a step-parent adoption, he will show up and oppose. I am afraid. I don’t want to give him notice."

In almost all of these cases, the biological father, more often than not, is not a former husband, but is a man who has either never acknowledged parentage or one who “got caught” by the prosecuting attorney and either admitted paternity before or after a DNA test, but was granted joint legal custody because he was a "good boy and admitted his parentage."

I explain that an adoption cannot be lawful without due process—notice to the biological father and the opportunity for fair hearing. I encourage these mothers to rely upon the fact that most biological fathers will either consent or will not show up to oppose.

It’s been my experience that some biological fathers consent to the adoption because they want to do the right thing by their child(ren)—allow them the stability of a stable, typical family. In fact, most biological fathers—especially those who have large arrearages, who have never paid child support and have never maintained any kind of parent-child relationship—readily consent to a step-parent adoption. Why wouldn’t they? How great it is to get out from under the burden of child support. In the alternative, they fail to show up at the hearing to contest the adoption.

But now we have this Court of Appeals decision that clearly shows that without consent of the father who fits the mold as in this case--who has joint legal custody--no step-parent adoption can lawfully be granted.

NOTE: In 2013, shortly after the COA decided In re AJR, I wrote: "The decision in In re AJR cries out for remedial legislative amendment to the Adoption Code to promote its legislative purpose: permanency, stability and security for children. [I am now adding emphasis to this sentence, which I will discuss below.] I continued :"Any parent who substantially fails to provide support for his or her child(ren) for the two years preceding the filing of a step-parent adoption petition and who substantially fails to visit or communicate with his or her child(ren) during this two-year period should fall within MCL 710.51(6) and a court should be able to terminate parental rights and allow a step-parent adoption."

Re-thinking the above paragraph in August 2014, more than a year later and after the Michigan supreme court granted leave and affirmed the COA, I have suddenly had that "lightbulb moment." The legislature cannot amend the adoption code to provide as I suggested above. The MSC decision makes clear that the constitutional rights of the non-custodial parent with joint legal custody protect him or her from termination of parental rights under the adoption code despite the lack of support and the lack of maintaining a parent-child relationship. To legislate that a termination of parental rights on account of a lack of support or care or a relationship may occur even if a parent has joint legal custody would only be to enact a statute that the MSC has already determined infringes upon constitutionally protected rights. Thus such an enactment would be unconstitutional and would quickly be challenged.

The MSC indicated that a parent wanting to complete a step-parent adoption must first file a motion to modify joint legal custody to sole legal custody. Of course the grounds for this modification would need to be stated clearly in the motion to survive a Vodvarka challenge. So then what happens: Ahah! The non-custodial parent immediately resumes payments of support and/or attempts to resume a parent-child relationship. (Remember, Section 51(6) says a petitioner must prove both non-support and non-contact).

The question is: Can the custodial parent and his/her spouse then meet the requirement that the lack of regular and substantial support / parent-child relationship is a condition that must be proven to be present "at the time of the filing of the petition" for adoption? Perhaps the answer is "yes" if the family court will quickly schedule a hearing on the motion to modify joint legal custody.

The problem is that "joint legal custody" has been handed out like candy for the past thirty or more years. Bench and bar haven't really paid too much attention to the legal effect and some down-play the meaning of joint legal custody. Many families totally disregard the fact that "joint legal custody" means a right to joint decision-making, and unless a decision is challenged in court, there is no oversight or enforcement.

Most families who want to provide their children with the stability, the normalcy and the permanence that a step-parent adoption can accomplish may be deprived of the opportunity given the MSC decision in In re AJR. Family practitioners will want to counsel their clients against joint legal custody in many situations where it is inappropriate. Friend of the Court caseworkers may want to reconsider whether it is appropriate to recommend as a routine matter a grant of joint legal custody in DC cases where the father is identified for the purposes of finding a support father.

You may read the Court of Appeals’ decision here. Download In Re AJR ___ Mich App ___ (Mich App) Docket No 312100 (Decided April 18, 2013). You’ll want to pay special attention to the COA’s interpretation of MCL 710.51(6) and its explanation of why it doesn’t apply to a parent who shares joint legal custody. Also see: Download MCL 710.51

The MSC decision in In Re AJR may be read here: Download SC Opinion - In re AJR Docket No. 147522, ___ Mich ___ (2014), (Mich Decided June 25, 2014)

I want to give a big shout out to Scott Bassett, the family law appellate lawyer, who agreed with my concerns after the COA decision and who agreed to take this case on a pro bono basis. Scott, you made a valiant effort and for that I thank you. I know that you and I (and many others) view the MSC decision as heartbreaking for families.

Conclusion: In light of the MSC decision in In re AJR, family practitioners are going to have to undertake a whole new approach to step-parent adoptions in Michigan. Moreover, because no one has a crystal ball, parents who are awarded primary physical custody and the lawyers who represent them may want to give careful consideration to the idea that sole legal custody will protect the opporunty for the children to have, at some time in the future, an intact family structure through a step-parent adoption. Or, on the other hand, lawyers who represent the NCP may want to be certain that an award of joint legal custody protects the parental rights of that client.

