Court Makes Problems for Stepparent Adoptions with Absentee Fathers

What does it take to be a parent? When it comes in the form of a stepparent adoption, it can often take a lot of paperwork. Now a new Michigan Court of Appeals decision, In re AGD, is creating problems for mothers with Affidavits of Parentage trying to get stepparent adoptions with absentee fathers, and requiring even more paperwork to get the job done.


Disclaimer: Anyone, of any gender, can be a parent. Stepparent adoptions can be appropriate for mothers, fathers, and same-sex couples. Absentee mothers can cause just as much trouble for children as absentee fathers. However, because of the way Michigan’s Acknowledgment of Parentage Act is written, this blog post is focusing on stepparent adoptions with custodial mothers and absentee fathers.


Setting the Scene for a Contested Stepparent Adoption

The mother in the case In re AGD, had been a single mother when the child (who is not named) was born in 2015. The child’s father had a heroin addiction, and while he was sober for 19 months after the child was born, he ended up in residential treatment in 2016 and 2017.

Then, in April 2018, the father decided he wanted to get involved with the child’s life. He filed a complaint for custody, parenting time, and child support. But while that case was still pending — and before any child custody order had been entered — the mother and her new husband asked the court to enter a different order. They filed a petition for stepparent adoption.

This set the scene for a contested stepparent adoption. In most cases, absentee fathers (or mothers) stay that way during the adoption process. But when the absentee parent objects to the adoption, it’s up to the court to decide whether it is appropriate to terminate the parent’s rights and grant the adoption. That is what happened in In re AGD, setting the court up with the opportunity to make a decision that will affect many stepparent adoptions in the future.

Legal Parents and Affidavits of Parentage

The mother and father of this child weren’t married when the child was born. Instead, they signed an Affidavit of Parentage. This one-page form that is often signed while mom and baby are still in the hospital does a few important legal things:

  • It establishes a father as the legal parent of the child, with all the rights and responsibilities that go with that, without going to court.
  • It places initial decision-making and physical custody with the mother until one party (usually the father) takes the matter to court.

Importantly, while the Michigan Acknowledgment of Parentage Act sets initial custody between the parties who sign it, the Affidavit of Paternity itself is not a court order for custody.

Court Says Prior Custody Order is a Must for Stepparent Adoption with Absentee Father

The argument between the parents came down to this: Mom said that she had custody of the child according to the Michigan Acknowledgement of Parentage Act. Dad said that wasn’t enough because the statute required the petitioner to have custody of the child “according to a court order”.

The law controlling stepparent adoptions is MCL 710.51(6). It says:

If the parents of a child are divorced, or if the parents are unmarried by the father has acknowledged paternity or is a putative father who meets the conditions in section 39(2) of this chapter, and if a parent having custody of the child according to a court order subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent [as long as certain conditions are met.]”

MCL 710.51(6)

After taking a close look at the language, punctuation, and grammar used in the statute, the court decided that the requirements break down like this:

  1. If
    1. the parents of a child are divorce, or if
    2. the parents are unmarried but the father
      1. has acknowledged paternity or
      2. is a putative father who meets the conditions in Section 39(2) of this chapter, and
  2. if
    1. a parent having custody of the child according to a court order subsequently marries and
    2. that parent’s spouse petitions to adopt the child,
  3. [then] the court upon notice and hearing may issue an order terminating the rights of the other parent if
  4. [those certain conditions are met.]

By interpreting the language of the statute this way, the court found that only a parent who has custody of a child according to a prior court order had the authority to join his or her spouse in a petition for stepparent adoption.

Court Decision Makes Problems for Stepparent Adoptions with Absentee Fathers

This causes problems because before this decision, mothers who had custody under the Michigan Acknowledgment of Parentage Act could go straight into a stepparent adoption without first obtaining a court order. However, the new ruling means that these mothers with absentee fathers must first ask the court to enter a custody order under the Michigan Child Custody Act, and then file a separate Petition for Stepparent Adoption. This will delay the final resolution of custody actions and give absentee fathers “two bites at the apple” to obstruct a custodial parent’s attempt to adopt.

This isn’t the first time this has happened. In 2014, in In re AJR, the Michigan Supreme Court took a close look at the language, punctuation, and grammar used in the same section of the statute to decide that a petitioner in a stepparent adoption must first have sole legal custody before pursuing an adoption. This was so far from the legislature’s intent in creating the Michigan Adoption Code that Congress quickly revised the law, changing “the” to “a” to keep custodial parents from having to go back to court a second time to change the order.

That was the same amendment that added the “according to a court order” language the Court of Appeals relied on here. Could this new language have created yet more problems for stepparent adoptions with absentee fathers? When the mother’s attorney in In re AGD raised this issue, the court ruled “petitioners’ argument rests on oversimplification and on the tacit assumption that MCL 710.51(6) will only be applied in cases involving traditional familial arrangements.”

Certainly stepparent adoptions happen in many family circumstances and parental custody can take many forms. But by refusing the consider the effects of how this reading of the Michigan Adoption Code interacts with the gender-specific laws of the Michigan Acknowledgment of Parentage Act, which themselves are based on traditional familial arrangements, the court has created a set of hurdles that either the Michigan Supreme Court or the state legislature will once again have to tear down.


Lisa J. Schmidt is an adoption attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps couples and family members with direct placement, relative, and stepparent adoptions. If you need help unifying your family, contact Schmidt & Long today to schedule a consultation.