In a stepparent adoption, a non-custodial parent’s rights can be terminated without his or her consent starting September 5, 2016. This is the case even though he or she has joint legal custody of the child.
Currently, under MCL 710.51(6), if the “parents of a child are divorced, or are unmarried but the father has acknowledged paternity or is a putative father,” a stepparent may petition to adopt the child of a spouse if the spouse has legal custody. A putative father is a man whose legal relationship to a child has not been established. However, he alleges to be the father to a child who is born to a woman to whom he is not married at the time of the child’s birth. A court may terminate the non-custodial parent’s rights under provisions of the Adoption Code if, for a period of two or more years before the filing of the adoption petition, the following two conditions are met:
a. The non-custodial parent who has the ability to support or assist in the support of the minor child, fails or neglects to provide “regular and substantial support” for the minor child; and
b. The non-custodial parent failed or neglected to visit, contact or communicate with the minor child. A non-custodial parent’s rights could not be terminated to allow for a stepparent adoption of a minor child if the non-custodial parent had joint legal custody of the child, according to the State Supreme Court in 2014.
Before a court could terminate a non-custodial parent’s rights to allow for a stepparent adoption, the custodial parent would have to seek a modification of the custody agreement. This would be to grant the custodial parent sole legal custody of the minor child.
Sole legal custody no longer needed
The Governor approved Senate Bill No. 458 on June 6, 2016. As a result, it removes the requirement that the custodial parent must have sole legal custody of the minor child. With this change, if the non-custodial parent hasn’t provided “regular and substantial support” and has failed to visit, communicate or contact the child for two years, the court may terminate the non-custodial parent’s rights. The stepparent adoption could then take place despite the joint legal custody. Bill 458 also states a child support order stating zero support or reserved shall be treated as if no support order was entered.